Tags: border wall | national emergency | trump

Even Pro-Wall Republicans Should Rally to Defend the Constitution

Even Pro-Wall Republicans Should Rally to Defend the Constitution
U.S. Senator Lindsey O. Graham attends a panel discussion in Munich, southern Germany, on February 15, 2019. (Thomas Kienzle/AFP/Getty Images)

Monday, 04 March 2019 05:14 PM Current | Bio | Archive

Seeking to build a wall for which Congress refused to appropriate funds, President Trump declared a national emergency.

Under the legislation that allows presidents to declare emergencies, the House voted to rescind his declaration. The Senate must now concur or disagree, and it looks like it will agree with the House. But President Trump threatens to veto the joint resolution if it is enacted by Congress, leaving the "emergency" in place.

There is indeed an emergency here, but it is a Constitutional emergency totally created by Mr. Trump.

The Constitution clearly gives Congress exclusive authority to authorize the government to spend money.

"No money shall be drawn from the Treasury, but in consequence of appropriations made by law . . . ." (Article I, Section 9).

Emergencies could arise in which a president needs to spend money and there is no time for Congress to assemble and authorize it. But in this case, when Congress is already in session, the basis for calling the emergency has existed for a long time, and Congress has explicitly refused to appropriate funds the president wants for it, getting the money by declaring an emergency turns the Constitution on its head. Any statute allowing a president to do any such thing would itself clearly be unconstitutional.

The roots of the Constitution's provisions for appropriating money go way back in English legal history, with a decisive period being the reign of King Charles I (1625-1649). Charles was beheaded in 1649 after decades of feuding with Parliament, often over his unauthorized taxation and expenditures, contrary to the requirements of English law.

There is no need to oil up a guillotine in today's America, but if Constitutional order is to be preserved Congress clearly needs to stomp on Trump's usurpation of its legal authority to appropriate money. If both houses vote to overturn the declared emergency and Trump vetoes it, the issue is placed squarely before Congress: Will the necessary two-thirds of both houses uphold the Constitution by voting to override the veto?

There is historical precedent for bipartisanship here. A previous presidential attempt to violate Constitutional norms was Franklin D. Roosevelt's proposal to add six extra justices to the Supreme Court so it would support his New Deal legislation. His "court-packing" proposal drew bi-partisan condemnation in Congress, including by his own vice president, John Nance Garner. (Attn: Mike Pence!)

Roosevelt's scheme ultimately went nowhere.

Many congressional Republicans have expressed concerns about Mr. Trump's emergency. Only thirteen House Republicans, however, voted along with all the Democrats for the resolution overturning the emergency. Columnist Dana Milbank has called Senator Lindsey Graham (Republican from South Carolina) a "paragon of opportunism."

Graham recently tipped his hand on his probable vote when the resolution comes up in the Senate. Alluding to fears that Trump "base" voters might take him out in a primary election if he votes to end the emergency, Graham said "If you don't want to get re-elected, you're in the wrong business."

Senator Graham had a good point, but it is a good point only within certain limits. Sensitivity to public opinion is all very well, but not when that opinion wants you to support undermining basic constitutional protections against arbitrary government.

When the chips are down, politicians should put the general welfare, including preservation of Constitutional protections against arbitrary leadership, ahead of their own political survival. To do otherwise would violate their oath of office to defend the Constitution and to "bear true faith and allegiance" to it.

Even Republicans politicians who favor building a major wall should rally to the defense of the Constitution and of its assignment of responsibility for appropriations to Congress. They should all vote to override a presidential veto here if the president actually carries out his threat.

To modify Lindsey Graham's words slightly, if a member of Congress wants to be re-elected no matter how much damage it does to our Constitution, he or she is in the wrong business.

Paul F. deLespinasse is Professor Emeritus of Political Science and Computer Science at Adrian College. He received his Ph.D. from Johns Hopkins University in 1966, and has been a National Merit Scholar, an NDEA Fellow, a Woodrow Wilson Fellow, and a Fellow in Law and Political Science at the Harvard Law School. His college textbook, "Thinking About Politics: American Government in Associational Perspective," was published in 1981 and his most recent book is "Beyond Capitalism: A Classless Society With (Mostly) Free Markets." His columns have appeared in newspapers in Michigan, Oregon, and a number of other states. To read more of his reports — Click Here Now.

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Seeking to build a wall for which Congress refused to appropriate funds, President Trump declared a national emergency.
border wall, national emergency, trump
Monday, 04 March 2019 05:14 PM
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