Seven percent of America believes that Congress should fund President Donald Trump’s wall on the U.S.-Mexico border in order to end the government shutdown. That fact is an enormous opportunity to change the dynamic between this Congress and this president. House Speaker Nancy Pelosi should address the nation and make the following offer to Trump: If he ends the shutdown now, Democrats will promise to negotiate to fund construction of the border wall after he has won an election in which that policy was a central issue.
This is the critical fact that too much of the current debate seems to miss: Trump has no democratic mandate for his wall, and therefore no constitutionally moral justification to leverage the enormous power of the presidency to force Congress to accept it. Putting aside the argument about whether a president who is selected after winning not even a plurality of the vote could have any mandate at all, it is clear that the only mandate Trump could claim from 2016 is for a wall “paid for by Mexico.”
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That is not the wall he is now demanding. That wall, paid for by us, was a central issue in the 2018 campaign. The results from that election show America doesn’t want that wall either. Trump has therefore never won America’s support for the idea for which he is now holding America’s government hostage.
That truth renders his demand democratically immoral. No doubt, he has the constitutional power. No doubt, his exercise of that power is not justified.
US cannot afford unilateral brinksmanship
Yet were Trump to have a clear mandate, he would have a justification for using the full power of his office to force agreement. In a divided government, each side gets a claim. And within the boundaries of at least a plausible claim to a democratic mandate, all bets are off. Such mandates are few; they define the core battle that could be said to have decided an election. They are the fights that determined who won and who lost. They are what an election “meant.”
Everything else must live within a politics of principled compromise. The divided system of checks and balances that is the United States government cannot afford unilateral brinksmanship. It cannot function if each side treats every issue as if it were a core issue of principle or morality.
A demand without a mandate is extortion
Members of Congress come to Congress with different agendas, some liberal, some not. But the aim of governance must be to add those differences together and use them to find a common purpose that at least a majority might agree upon. Everyone, including the president, must work to get what they can, recognizing no one will get everything they want.
The precedent that Trump has set is chilling, at least for our Constitution, at least within the era of partisan polarization. The job of the president is not to issue commands. It is to work with the other elected members of government to make government work.
That dynamic depends fundamentally upon the support of the people. It should get loud or strident only with the overwhelming demand of the people. Without that demand, no side should give in to extortion. For without a mandate, extortion is precisely what it is.
Lawrence Lessig is Roy L. Furman Professor of Law and Leadership at Harvard Law School, and founder of EqualCitizens.US and author of “America Compromised.” Follow him on Twitter: @lessig