When President Donald Trump declared his national emergency last Friday, he was correct when he stated that there had been over 50 other national emergencies. But his is significantly different than all but two of those. Each President Bush declared a national emergency related to war time situations…the Gulf War and 9/11. And they quickly got legislative support for their actions. None of the rest dealt with moving budgetary dollars around.
But there is a lot of talk that the Trump NE is unconstitutional…and here’s why.
It was no accident that the first and longest article of the US Constitution establishes the legislature, the House of Representatives in particular. The house is responsible for initiating the budget and oversight of the executive branch. So when a budget is passed…the monies assigned to the individual agencies and projects are meant to be used exclusively for those purposes. The president isn’t, according to the Constitution, allowed to change those purposes…without Congress changing the budget…and if he tries to, Congress uses its oversight responsibility to put him in his place.
Now the House was expressly assigned the pre-eminent powers of the purse because they were the only branch of government elected directly by the people in the original amendmentless Constitution. And writers felt those closest to the people would be the most responsive to the will and desires of the people.
So now we have a president who intends to move budget dollars around to pay for a border wall that he wants. Money that Congress specifically has denied him. And before we start blaming the Democrats and House Speaker Nancy Pelosi (as Senator Ron Johnson and Representative Jim Sensenbrenner have already done) for the lack of funds for the wall, let’s keep in mind that the Republicans held all majorities in the House, Senate and White House for the past two years and didn’t budget for a wall. See my discussion on that here. So if the GOP wanted a wall, we’d have a wall.
Now the appropriate move would be for Congress to pass a resolution rescinding the National Emergency and send it to the president. And make it known that there is a two thirds majority to over ride his veto. End of story.
Now I realize that there are some Republicans who support a wall and support the president’s desire to build one…well at least out loud (see link above and remember if they really wanted a wall, we’d have a wall). But if any of them are Originalists, they can’t support the president usurping the power and authority of the House and Senate.
The Republicans won’t support a resolution to shut down the National Emergency…they just wont go against the president…Originalist or not. So this will wend its way through the federal courts.
But it would really be nice if Congress finally stood up for itself and stopped enabling the Imperial Presidency that’s been growing since early in the 20th Century and rapidly growing in this one. Part of the gridlock in Washington would evaporate if the separation of powers worked somewhat as designed in 1789.
So it will get real interesting when the Originalists that the conservatives have been appointing to the Supreme Court gets their hands on this. If they are truly Originalists, they will have to void the national emergency and tell the president the Constitution takes precedence over his whims. And he’ll need to get his budget dollars from Congress!