Statement of The Constitution Project at the Project On Government Oversight to the House Judiciary Committee Subcommittee on the Constitution, Civil Rights and Civil Liberties “Opposition to President Trump’s Unconstitutional Declaration of a National Emergency”
On February 14, 2019, Congress passed a spending bill to keep the federal government open. On the same day President Trump signed the bill, he announced that he was declaring a national emergency in order to procure funding to build a wall along a portion of the United States border with Mexico.1 The bill he signed—which was passed 83 to 16 in the Senate and 300 to 128 in the House of Representatives—appropriated only $1.375 billion for 55 miles of “physical barriers.”2
At the Project On Government Oversight (POGO), we take no position on whether there should be a physical barrier built along our southern border. We do, however, join the many Democrats and Republicans who believe that the President’s emergency declaration is unconstitutional.
Founded in 1981, POGO is a nonpartisan independent watchdog that investigates and exposes waste, corruption, abuse of power, and when the government fails to serve the public or silences those who report wrongdoing; The Constitution Project was founded in 1997 and joined POGO in 2017. We champion reforms to achieve a more effective, ethical, and accountable federal government that safeguards constitutional principles.
It Is the Job of Congress, Not the President, to Appropriate Taxpayer Money
The framers of the Constitution created a government of separate and distinct powers, which is “essential to the preservation of liberty.”3 The founders were particularly concerned with severing the power to make war and the power of the purse from the executive: not only are these two of the most significant functions of government, but they also represent powers susceptible to grave abuse by a single head of state. In “Federalist 58,” James Madison explained that the power of the purse was the “most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”4 In short, the closer the proximity of the spending power to the people, the better.
In the following two provisions, the framers gave Congress—“the people’s representative”5—the power to raise and spend funds:
“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States…”
“No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”6
The president can no more spend the people’s money without Congress appropriating it than he can levy taxes without Congress’s approval. As Madison wrote in “Federalist 48,” “the legislative department alone has access to the pockets of the people.”7 And time and again, the Supreme Court has reaffirmed the primacy of Congress in appropriating money from the national treasury.8
By declaring a national emergency to circumvent Congress’s spending decision on border security, the President is acting as appropriator and legislator, roles exclusively reserved for the Congress. If the President is unhappy with Congress’s allotment of funding, the Constitution affords him a single remedy: he can veto the spending bill.9
The President’s Power Is at Its “Lowest Ebb” When Opposing the Will of Congress
While past presidents viewed certain events as requiring funding so immediately that they merit superseding the Constitution’s clear limit on the executive, these instances are exceedingly rare and are without parallel in the modern age. The last such instance was by President Abraham Lincoln, who ordered the expenditure of $2 million in federal funds in advance of the appropriations from Congress.10 He did so at the outbreak of the Civil War and with a Congress unable to hastily convene to appropriate necessary funds to support the Union.11
In 2019, there is no such exigency. The situation on the southern border simply is not tantamount to an actual invasion or an act of war.12 Moreover, the Congress has convened and it has appropriated funding for border security. In light of these events, President Trump cannot override the separation of powers by declaring a national emergency.13
President Trump first announced he was considering declaring an emergency to construct a border wall on January 4, 2019.14 Over the next month, Congress negotiated a bill, drafted with bipartisan input and passed with bipartisan support, to fund the government. While the continuing resolution passed on February 14 contained $1.38 billion for pedestrian fencing along the border, it contained no provision or funding to build a “wall.”15 In so doing, Congress expressed its will through the appropriations process, which is as determinative of the intent of the Congress as if it had passed “substantive legislation” on the matter.16
President Trump’s declaration of a national emergency therefore directly contravenes the will of Congress. As Supreme Court Justice Robert Jackson noted in his often-cited concurrence to the 1952 landmark ruling in Youngstown Sheet & Tube Co. v. Sawyer, when a president seeks to contravene the will of Congress, his “power is at its lowest ebb.”17 Justice Jackson continued, a “[p]residential claim to a power [under those circumstances]… must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”18 Unlike this declaration, none of the nearly 60 previous emergency declarations since the passage of the National Emergencies Act of 197619 have directly contradicted the will of Congress, and so posed no threat to the equilibrium on which our constitutional system depends.20 Thus, it is not surprising that, as Senate Majority Leader Mitch McConnell (R-KY) recently noted, emergency declarations “issued in the past have not been contentious.”21
Former GOP Lawmakers: Honor Your Oath and Protect the Constitution
Former Republican lawmakers come together to urge those who are now charged with upholding the authority of the first branch of government to resist efforts to surrender those powers to a president.Read the Letter
If Congress allows President Trump’s declaration of an emergency—issued the day after Congress rejected his bid for wall funding—to stand, this would set a dangerous precedent for future presidents to create a constitutional workaround to force their will in policy conflicts. As numerous former Republican Members of Congress have noted, in addition to jeopardizing the separation of powers, if Congress allows this president to contravene its will, it would set a precedent that could later be used for purposes that would surely cause Republicans in office now to regret ceding the power of the purse to the whims of the executive.22 What would stop a Democrat in the White House from declaring something like climate change a national emergency and subsequently suspending duly enacted laws to address the crisis?23
If a president no longer has to come to Congress to withdraw funds from the national treasury, there are endless purposes for which taxpayer money may spent at the whim of a single individual. This kind of conduct defines an autocracy, not a democracy.
Emergencies Do Not Suspend the Separation of Powers
In objecting to President Trump’s emergency declaration, we are not suggesting that there is never a circumstance under which this president, or any other, could properly declare an emergency.
Since the passage of the National Emergencies Act, there had been 59 previous national-emergency declarations, not including the most recent.24 These declarations, as Senator McConnell noted, have not been contentious; they have addressed issues such as the Iran hostage crisis of 1979 and the swine flu outbreak in 2009.25 In fact, President Trump has previously declared three national emergencies, and 28 emergencies declared by past administrations, most of which provide for the imposition of sanctions on foreign entities, are still in effect.26
Upon a president’s declaration of a national emergency, there are over 100 statutory provisions that allow him to exercise emergency powers.27 Some of these statutes list conditions that must be met in order for the president to exercise the authorities contained within them—for example, a potential bioterrorism attack28—while others do not. The statutes that lack clearly defined conditions are ripe for abuse of power by the executive. The National Emergencies Act, which was enacted to “make the executive branch more responsible to Congress when using statutory emergency authority,” requires the president to identify the emergency powers laws he is invoking upon declaring an emergency.29
When President Trump declared a national emergency on February 15, he invoked a 1982 emergency powers law that does not list the sort of conditions described above. This law allows the president, “in the event of a declaration of war or the declaration by the President of a national emergency…that requires use of the armed forces,” to exercise the emergency powers contained in the statute.30 This is problematic because the president alone can create the conditions that trigger the authorization of those powers, as he has the authority to act unilaterally to declare a national emergency and to determine when a situation requires the use of the armed forces. Even so, while this law grants the president far too much discretion, it does not authorize the President to overstep the separation of powers by contravening the will of Congress.
In short, emergencies do not suspend the separation of powers. Indeed, it is during emergencies when constitutional protections from executive overreach may be most needed.
Our nation’s founders knew well the dangers of entrusting a single executive with unfettered power. And, as Constitution Project at POGO Scholar in Residence Louis Fisher, a well-known expert on executive power, has observed,
It could be argued (and has been argued) that the framers’ model was appropriate for the eighteenth century but not for contemporary times, when it is supposedly important to concentrate greater power in the president to respond promptly to national emergencies. The framers were fully aware of such arguments and rejected them. Living in a time of crisis and situated on the highly vulnerable eastern seaboard, they decided to vest in Congress the core powers of war and spending.31
The Constitution plainly gives Congress the power to spend, but the separation of this power from the executive has little meaning—and does little to protect the pockets of the people—if Congress abdicates the role to the president.
Recent history provides an example of Congress attempting to hand over this authority to the president, with the 1996 Line Item Veto Act, which allowed the president to cancel various spending measures contained within a bill passed by Congress unless the Congress voted within 30 days to reverse the cancelation.32 The Supreme Court soon proved more willing than Members of Congress themselves to protect Congress’s institutional prerogatives and responsibilities, finding the Act unconstitutional.33
In passing a law to permit the president to issue line item vetoes, Congress gave away its power. Now, Congress appears to be on the brink of handing over that power to the president again, allowing the president act as appropriator. It could be that, should litigation on the national emergency reach the Supreme Court, the Court would view this issue similarly and reject the President’s attempt to usurp Congress’s spending power. But the preferable path is for Congress to defend its own constitutional and institutional prerogatives and expressly reject the President’s creation of a “national emergency” workaround of the Constitution.
History Repeats Itself
Rather than resembling previous national emergency declarations, President Trump’s declaration is akin to past, ill-fated attempts by presidents to invoke a crisis to justify overstepping the separation of powers. Congress would be wise to see this ploy for what it is.
President Lincoln suspended habeas corpus while Congress was not in session and later suggested that his own action had been illegal.34 Facing a nationwide strike of steelworkers, President Harry S. Truman attempted to federalize steel mills around the country, which the Supreme Court forcefully repudiated as an unconstitutional power grab, in the Youngstown Steel case discussed above.
The Constitution Project at the Project On Government Oversight would have opposed those illegal actions, just as we have opposed their modern iterations. These include our opposition to President Barack Obama’s unconstitutional use of force in Iraq in 201435 and in Libya in 2011,36 as well as our pointed criticism of senior-level officials under President George W. Bush for violating treaty obligations through forced disappearances and arbitrary detention of terror suspects in secret prisons around the world after 9/11.37
If even acts of war and terrorism do not warrant breaking the law, then a funding dispute over border security clearly does not. The fact of the matter remains that when it comes to spending the people’s money, it is the president who is subordinate to Congress, not the other way around.
We must vigorously oppose abuse of power, regardless of who is in the White House, and we call on all Members of Congress to do the same.
Accordingly, we strongly urge Congress to pass a resolution to end the national emergency.
Furthermore, this episode illuminates long-simmering problems with the current legal framework for addressing real emergencies. Most notably, the National Emergencies Act does not define what constitutes a national emergency. This was a purposeful omission, as legislators intended to rely on the definitions to be found in “the various statutes which give [the president] extraordinary powers.”38 Such reliance was misguided, as plainly demonstrated by President Trump’s invocation of a 1982 law that provides no meaningful limit on what conditions permit reallocation of funds appropriated for military construction.
We also urge Congress to consider reforms to the National Emergencies Act to better ensure that presidents are both well-equipped to respond to actual emergencies and precluded from abusing that authority. These amendments could include a sunset provision that would, absent Congressional action within a specified time period, end the national emergency; providing some basic definition and justiciable standards as to what constitutes an emergency; as well as ensuring that the Act cannot be used for expenditures that Congress has rejected through its authorization or appropriations process.
Finally, Congress must begin the difficult task of examining emergency provisions found across dozens of federal statutes, with an eye toward amending those that are ripe for abuse. While some of these laws may provide sufficient definition and reasonable restrictions on executive powers, others, like the 1982 law the President invoked, do not.
It is of the utmost importance that Congress act now to reassert its constitutional authority as the nation’s lawmaker and appropriator by ending this national emergency, lest it allow the executive branch to do lasting damage to our constitutional system.
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