Why Trump Will Win - Courts were not Created to Protect Congress from Itself.

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Justice Oliver Wendell Holmes once said, “If my fellow citizens want to go to hell, I will help them. It is my job.” He was expressing the limited role of courts in challenges to federal law. It is not the task of judges to sit as a super legislature to question the agendas of the political branches. They will gladly send Congress to hell. It only needs to point to the destination.

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This crisis is not the making of Donald Trump. This is the making of Congress.

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For decades, Congress frittered away control over its authority, including the power of the purse. I have testified before Congress, warning about the expansion of executive power and the failure of Congress to guard its own authority. The two primary objections have been Congress giving presidents largely unchecked authority and undedicated money. The wall funding controversy today is a grotesque result of both of these failures.

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Many of them, like Pelosi, denounce this unilateral action by Trump yet ecstatically supported the unilateral actions by Obama, including his funding of some critical parts of the Affordable Care Act after Congress denied any funds.

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Congress has never been particularly concerned over past declared emergencies, which have continued with perfunctory annual renewals. Most such emergencies are entirely unknown to the vast majority of Americans.

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That brings us back to Holmes. Congress has the authority to rescind the national emergency declaration of Trump with a vote of both chambers. The legislative branch should do so. If Congress cannot muster the votes, however, a federal judge is unlikely to do so. Simply put, the courts were not created to protect Congress from itself. Congress has been heading to hell for decades, and it is a bit late to complain about the destination.

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