President Trump’s “National Emergency”

Spirited Reasoners will recall–at least those of us who took a decent course in Civics, American History, or Constitutional Law–that the U. S. Constitution establishes three branches of government, each with certain checks and balances on the other two branches. The philosophy underpinning that novel structure could be summarized in Lord Acton’s famous quote: “All power tends to corrupt and absolute power corrupts absolutely.”

Why, then, would Congress pass the National Emergencies Act in 1975, a law which grants to the President certain powers to use money seemingly without permission from another governmental branch? Because the law was designed for the opposite reason; namely, to constrain the President’s power by prescribing the manner in which emergency funds could be used.

One look at the date of that law should serve as a reminder: Congress had just forced the resignation of President Nixon, and wanted to ensure that any future President would administer funds only in those ways authorized by Congress in advance. Thus, the National Emergencies Act requires that, before the President can use funds to respond to any declared emergency, he must specify another statute for which funds have been pre-authorized by Congress for emergency use.

In which statutes, then, will President Trump find the $5 billion he claims is necessary to respond to the “national emergency” he has declared? The short answer is that he won’t find that amount of money, at least not legally. While Congress has set aside small chunks of contingency money to respond to urgent military construction needs (under one statute) and sudden influxes of so many immigrants that our security infrastructure would be strained (under another statute), both of those statutes added together would provide less than 2% of his stated goal.

It’s time, then, for Spirited Reasoners to take a giant step backward and a long, deep breath, before considering, just for a moment, the purpose behind “national emergency” powers. All of us should understand that there might be moments in which an external threat of some sort could attack the United States while Congress is not in session, or when a reasonable person would conclude that there was insufficient time for Congress to debate the measure before immediate action was required.

That is simply not the case here.

Why not?

Because President Trump has been talking about this so-called emergency since before he was elected in 2016, and Congress has spent months debating it. And in the end (and here’s the key)

Congress rejected his reasoning. 

In other words, this is a clear case in which one branch of government shouted “there’s an emergency!” and another branch of government–the only one with spending power, as provided in Article I, Section 8 of the U. S. Constitution–replied “sorry, we don’t agree.”

So, in this case, it seems clear that the third branch of government, the Judicial Branch, should rule against the President’s action. Otherwise, we would be rewriting the Constitution, granting power to this President and any future President to spend unauthorized sums of money on any matter that he or she decides is important enough to be declared an emergency.

Sorry, but the Spirited Reasoner has to go. It appears that I must declare a family emergency so that I can eat at my favorite restaurant.