The Only “National Emergency” We Face is a Potentially Unchecked Executive

Shiam Kannan | United States

President Donald Trump has never been a steadfast proponent of Constitutional conservatism, but on Friday, February 15th, 2019, he issued a full-fledged assault on American constitutional principles, declaring a National Emergency at the southern border in order to gain access to billions of dollars for the construction of a border barrier. While a strong case can be made on the merits of a border wall, the issue at hand goes further: our nation is at a Constitutional crossroads, and at this moment, we must decide whether the President has the power to spend money without Congressional consent.

The Constitution clearly addresses this issue, and the answer, according to the document, is a firm “no.” Article 1, Section 9, Clause 7 of the Constitution states that “[n]o Money shall be drawn from the Treasury but in Consequence of Appropriations made by Law.” In other words, if there is no appropriations bill passed by Congress delegating money for a specific purpose, then money cannot be spent on that purpose. This means that Trump does not have any authority under the Constitution to unilaterally fund his border wall, or anything else, for that matter, using taxpayer dollars, unless Congress passes a funding bill which explicitly authorizes it.

The Constitution also does not make exceptions for so-called “national emergencies”; there are no asterisks or fine print in the Constitution which allow the President to seize powers delegated to Congress whenever he deems something to be a “national emergency.” Therefore, if the Constitution unequivocally bestows the power of the purse to the Legislature, rather than the Executive, then there are no exceptions, no possible circumstances, no scenarios, in which the President can unilaterally exercise this power. As eloquently stated by the late Supreme Court Justice Antonin Scalia, the Constitution “says what it says and doesn’t say what it doesn’t say.” Conservatives once used to champion this strain of originalist Constitutional thinking, but now, they have rolled over and deferred to the interpretation of a 72-year old reality TV star who has probably never read a Constitution in his life.

The Constitution notwithstanding, the Founding Fathers would also be appalled at the mere notion that the President could spend without Congressional approval. Indeed, in Federalist No. 58, James Madison writes that “The House of Representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of government. They, in a word, hold the purse that powerful instrument… reducing… all the overgrown prerogatives of the other branches of the government. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people.” In this essay, Madison makes it clear that Congress being the sole and final authority regarding spending is imperative to curtail what he describes as the “overgrown prerogatives” of the other branches of government. This description almost exactly mirrors our current predicament: Trump’s “overgrown prerogative” to build a wall, even devoid of Congressional consent. If Republicans truly care about defending the Founders’ vision for this great Republic, as they have claimed over and over in the past, perhaps they should defer to James Madison’s interpretation of the Constitution over Donald Trump’s.

This is the cornerstone of originalist, Constitutional conservatism: the Constitution is to be interpreted the same way it was intended to be interpreted by those who wrote it. Thus, those modern “conservatives,” who attempt to “read between the lines” and perform mental gymnastics to justify Trump’s expansion of executive power on Constitutional grounds, are now merely guilty of what they have long accused the left of doing: twisting and bending the meaning of the Constitution to concur with their political agenda. And if the modern Republican Party were truly conservative, it would be just as livid with this “national emergency” farce as it is when left-wing court judges invent “rights” nowhere to be found in the Constitution.

Setting aside any Constitutional or philosophical issues, Trump’s “national emergency” proclamation may pose for conservatives and Republicans, it is still a terrible idea, due to the precedent it would set, and the door it leaves wide open for tyranny in government. In a classic case of “even a broken clock is right twice a day,” Democrats have correctly pointed out that if Trump uses National Emergency powers to further his agenda, a future Democratic President could do the same thing to further his/her own agenda, on issues such as gun control or climate change. Any conservative who isn’t bothered by this prospect should take a moment to imagine Alexandria Ocasio-Cortez becoming president and having the ability to spend billions of tax dollars on her “Green New Deal” without Congressional Approval, after declaring climate change to be a “national emergency.” Obviously, such a scenario would be disastrous for the United States, which is exactly why we cannot let the President assume the power of the purse, even if it is for a policy we support: if the powers of the Executive Branch are expanded, they will remain expanded for all future Presidents to use (or abuse). These future presidents will then be able to exercise these same powers to enact policies we may not support, with Congress, having lost its power to withhold funding for Executive ambitions, rendered unable to stop them.

But even if we ignore political differences, Trump’s National Emergency declaration would permanently expand the power of the Executive Branch, and allow it to further dwarf an already-impotent Legislature. While the Presidency has slowly been gaining power over the decades at the expense of Congress, such a drastic increase in Executive power, as Trump has declared, is unprecedented, and would almost certainly annihilate the Constitutional safeguard of separation of powers. To allow the President to have unilateral spending power would effectively nullify any authority Congress had left, and would unleash the Executive Branch to spend taxpayer money on essentially anything it wanted, even as it completely disregarded the consent of Congress and the American people.

So-called “conservatives” who support Trump’s egregious usurpation of power should ask themselves: “what exactly am I conserving?” Because they are most certainly not conserving the Constitution, the separation of powers, or the ideals of the Founding Fathers. Instead, they are only conserving their myopic cult of personality surrounding a power-grabbing authoritarian who merely poses as a conservative, while confirming that they are no more committed to defending the Constitution than are the Democrats. It’s ironic how Republicans, who never cease to pay lip service to the Constitution, especially on issues such as gun rights, are so ready to disregard it, simply because a member of their own party is President. The Constitution is not a lunch buffet, where one can pick and choose what he likes and dislikes. The Constitution is the absolute, supreme law of the land, and it’s high time conservatives started treating the entire Constitution with the same reverence they hold for its Second Amendment.

None of this, however, is to say that secure borders are unimportant. On the contrary, illegal immigrants cost American taxpayers a net burden of approximately $54 billion per year. There were almost 400,000 border apprehensions in 2018. And according to a new Yale/MIT study, there are potentially over 20 million illegal aliens residing in the United States. From these numbers alone, it is clear that we must secure our southern border, using a physical barrier if necessary. However, there is no circumstance that justifies violating the Constitution, even if the problem is as pressing as illegal immigration. Democrats and Republicans in Congress must find a way to work together and fund border security, even if it means both sides must make compromises. Many Congressmen have proposed smart solutions for wall funding, such as Senator Ted Cruz (R-TX), who introduced the EL CHAPO Act, which would dedicate $14 billion in seized assets from the recently-convicted drug lord towards the construction of a wall. The next step after such proposals is getting both sides to come to an agreement on what to implement, and how to implement it.

Ultimately, combating illegal immigration will prove to be one of the most trying challenges of our generation, and solving this issue will almost certainly require acts of bipartisanship by both Democrats and Republicans. However, if we embrace unconstitutional expansions of Presidential power as the solution, we are sure to face even worse ramifications for our country in the near future.


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