I’m writing this on President’s Day and can think of no better way to celebrate the executive branch of our government than to protest President Trump’s declaration of a national emergency on our southern border.
In his first inaugural address, one of our greatest presidents, Abraham Lincoln, called upon his countrymen to find the “better angels of our nature,” and in his second inaugural address, Lincoln returned to this uplifting theme urging “malice toward none with charity toward all.”
Sadly, our current president seems hell-bent on flipping those famous words on their head as he calls upon the most craven impulses and shows malice toward all and charity toward none – unless perhaps one is a member of Club Mar-a-Lago.
Indeed, it would be hard to imagine two more different presidents, both Republicans, than Abraham Lincoln and Donald Trump.
Two years ago, Mr. Trump took a sacred oath to “faithfully execute his office and to preserve, protect and defend the Constitution of the United States.” By declaring a national emergency with respect to circumstances on our Southern border and announcing his intent to shift billions of dollars to fund his border wall, the president is violating that oath. His policy is unwise, ineffective and inhumane. And his most recent actions to implement that policy are, I believe, unconstitutional.
Our founding fathers wisely divided federal power among three branches of government: the legislative, the executive, and the judicial. Among the powers given to Congress is the exclusive power of the purse. Article I, Section 9 states: “No money shall be drawn from the treasury, but in consequence of appropriations made by law.” Thus, the executive branch cannot spend money unless the legislative branch has passed a law authorizing the spending.
Congress has given the president broad authority in the 1976 National Emergencies Act to declare a state of emergency, but the Act doesn’t define what “emergency” means. Even so, it would seem a monumental stretch to conclude that it means whatever the president says it means. There must be sideboards of reasonableness and reality.
It would be absurd if a president who was frustrated by Congressional inaction on a funding initiative could – regardless of the facts – simply declare a national emergency to achieve his ends. What Mr. Trump labels a “national emergency” is but a pretext, a manufactured scenario to enable him to get his way. A reasonable person can assess the situation on our nation’s southern border and conclude that it presents serious problems, but no reasonable person could conclude that those problems rise to the level of a national emergency.
An actual emergency would seem to demand urgent action. But the president conceded that he “didn’t need to do this” and acknowledged that, having an eye to the 2020 election, he merely wanted to speed up the process.
An actual emergency would likely be identified by the intelligence community in its comprehensive threat assessment to Congress. But there was not a single mention.
And an actual emergency would be supported by objective data permitting the reasonable inference that an emergency exists. Such data is utterly lacking. Mr. Trump’s assertions regarding the purported “emergency,” were gross exaggerations, half-truths, and outright lies.
But let’s assume for a minute – just for the sake of argument – that the southern border presents a national emergency for purposes of the Act. Where can the president turn to find the money to fund the wall? Under the National Emergencies Act, a presidential declaration of an emergency unlocks other provisions. One provision allows a president to spend already appropriated money for “military construction projects.” Another provision allows him to divert money from already appropriated disaster relief.
Only twice before in our history have presidents relied on emergency powers to spend funds on something other than that for which Congress had appropriated them. The first time was when George Herbert Walker Bush made his Persian Gulf War emergency declaration. The second time was when George W. Bush declared a national emergency after the September 11 attacks on the World Trade Center and the Pentagon. In both of these instances, however, the transfer of monies funded projects that Congress had considered and rejected. In contrast, Congress has clearly considered and rejected the president’s demand for $5.7 billion in wall funding. Instead, it provided $1.4 billion for steel fencing. Thus, the situation before us is unprecedented.
Can Congress do anything to prevent this executive overreach? It certainly can. This National Emergencies Act allows Congress to reject a president’s emergency declaration by a joint resolution passed by a majority vote in each house.
We can predict that the House of Representatives will comfortably pass such a resolution and, since it is deemed privileged, it will be guaranteed a vote on the Senate floor. Senate Majority Leader Mitch McConnell cannot reach into his bag of tricks to stop that vote.
That’s the good news. The bad news is that the president can veto the resolution. And, in order to override a presidential veto, the joint resolution must pass both houses with a 2/3 super majority.
In Federalist 47, James Madison wrote: “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many…may justly be pronounced the very definition of tyranny.” Madison and other founders reasonably expected that each branch would be vigilant in protecting their own rights and responsibilities. The dual and complimentary concepts of separation of powers and checks and balances only work if members of each branch actively protect their branch, if they tack to the Constitution and not the agenda of any party or president.
So, we are compelled to ask: Will Congress step up? And, closer to home, we ask: Will Idaho’s congressional delegation capitulate to Mr. Trump’s power grab or will they defend Congress as a separate and equal branch of government? We must ask them to grow a spine and stand up for the rule of law; we must urge them to protect our founders’ bedrock principles; we must demand that they rise to this singular and critical occasion.
I began this piece by quoting our Sixteenth president, and I will close by again quoting Lincoln. In his famous address at Gettysburg, the Great Emancipator saluted the service of those who gave their full measure of devotion so that “government of the people, by the people, for the people shall not perish from the earth.” It seems that throughout our nation’s history, each generation has been called to save our republic, this people-focused government of which Lincoln spoke. We have resisted forces from within and without that would undermine and destroy us, that would cut short our long-standing experiment as a constitutional democracy.
Now it is our turn. It is our turn to stand for the rule of law. It is our turn to resist tyranny. And it is our turn to do what this president seems utterly unwilling to do – to preserve, protect and defend our Constitution.
May we rise to the occasion; may we be equal to the task.Share on Facebook