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Because Congress Controls the Power of the Purse, Trump’s National Emergency Declaration to Build a Border Wall Uniquely Threatens the Constitutional Balance of Powers

 

As most of us learned in grade school, Congress, not the President, controls the purse. By declaring a national emergency based on flimsy arguments in an effort to redirect funds for a border wall, money already appropriated by Congress for other purposes, President Trump is abusing his authority. Trump did this on the very day he signed a bill passed by Congress, the subject of a months-long debate, which specifically rejected much of Trump’s border wall request. This action by the President is a direct assault on the separation of powers.  

The Constitution is Clear: Congress Controls the Purse, Not the President

As stated on the historical website of the House of Representatives, The framers [of the Constitution] were unanimous that Congress, as the representatives of the people, should be in control of public funds—not the President or executive branch agencies.”  Pursuant to Article I of the Constitution, “Congress—and in particular, the House of Representatives—is invested with the ‘power of the purse,’ the ability to tax and spend public money for the national government.”  As Elbridge Gerry, a Massachusetts delegate and Vice President, stated at the Federal Constitutional Convention (1787), “the House ‘was more immediately the representatives of the people, and it was a maxim that the people ought to hold the purse-strings.’”

Congress Debated the President’s Wall Request and Rejected It Multiple Times Through Duly Enacted Bills Signed by the President

President Trump made budget requests of the Republican-controlled Congress (2017-2018) to support a border wall, but large portions of these requests were repeatedly rejected by Congress. For fiscal year 2018, Trump requested $1.6 billion for a border wall and the Republican-controlled Congress approved only $1.375 billion for 82 miles of new and replacement barriers. For fiscal year 2019, the President’s original request of Congress was $1.6 billion for the border wall, and only several months later did the President begin to make unofficial requests of $5.7 billion. One month after a televised meeting in which Democratic House and Senate leaders clearly rejected the President’s $5.7 billion request – and the President proudly claimed responsibility for a government shutdown – the President finally submitted an official request for $5.7 billion, albeit incomplete. The result was a month-long standoff between Congress and the President, including an unprecedented 35-day government shutdown. Ultimately, Congress passed a bipartisan appropriations bill and the President signed it, providing $1.375 billion for 55 miles of bollard-type fencing, not $5.7 billion in border wall funding.     

The President May Not Undermine the Constitutional Authority of Congress by Declaring a National Emergency and Redirecting Money to a Project Congress Specifically Rejected

On the same day the President signed a bill passed by the Congress that provided $1.375 for border fencing, the President abused National Emergencies Act (NEA) authority by seeking to spend money the Congress – holding the power of the purse – specifically rejected in a duly-enacted bill. In declaring a national emergency, the President has sought to redirect already Congressionally-appropriated money to make up the difference between the $1.375 enacted by Congress and his $5.7 billion request that was clearly rejected by Congress in the enacted bill he signed.    

The NEA, like other laws, presumes those implementing it would be acting in good faith. Here, the President relies on manufactured evidence of a national emergency, then turns around and uses authority to redirect money already appropriated by Congress for other purposes to fulfill a project the Congress specifically rejected. If this action is deemed lawful, there is nothing that could stop a future declaration of a national emergency with flimsy evidence to appropriate money in ways not intended by Congress, further undermining what the framers of the Constitution intended – that Congress, not the President, controls the power of the purse.