This article originally appeared in The Hill on March 13, 2019.
In his maiden speech to the Senate four years ago, Sen. Ben Sasse (R-Neb.) rightly accused Congress of allowing the executive branch to become both maker and enforcer of the nation’s laws. “We need Democrats to speak up when a Democratic president exceeds his or her powers,” he urged. “And I promise you that I plan to speak up when the next president of my party exceeds his or her proper powers.”
Sen. Sasse was prescient. The moment he described has come to pass with President Donald Trump’s hollow declaration of a national emergency on the southern border. The declaration attempts to redirect money Congress appropriated for a specific military purpose to a wall it voted not to fund, turning a simple policy debate into a constitutional confrontation. Because the declaration usurps Congress’s Article I authority, now is the time for all Republicans to stand up—less in opposition to the president than in support of the Constitution, which clearly distinguishes between the executive and legislative branch’s roles.
On the legal front, we have taken charge by filing a lawsuit to block the declaration in a Texas federal court on behalf of the County of El Paso and the Border Network for Human Rights. We expect to prevail, because the declaration is a clear violation of the constitutional separation of powers that our founders made law.
But Congress—and right now, the Senate—has a role to play, too. It is incumbent upon Senate Republicans to support a resolution to strike down the declaration, to start back down the road of reclaiming the constitutional authority that the Framers allocated to the legislature as a check on the executive branch.
That authority is Congress’s exclusive responsibility to make laws. Distinctly, the Constitution requires the president to “take care that the laws be faithfully executed.” The fundamental “check” the Constitution assigns to Congress is the exclusive duty to decide how the government spends money. Specifically, the Appropriations Clause provides that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” And the Spending Clause gives Congress the sole “Power To lay and collect Taxes . . . to pay the Debts and provide for the common Defense and general Welfare of the United States.”
This makes clear that the power of the purse is uniquely assigned to the Congress. While the president has certain countervailing balances at hand—the veto, for example—he is not empowered to spend unilaterally for initiatives that Congress not only did not approve, but actually rejected.
Indeed, the House and Senate have voted on the president’s wall proposal many times. In several cases, Congress has appropriated money for it. In others, it has denied it—which is the specific case here. No matter the outcome, the legislative branch has made affirmative decisions about this issue repeatedly, precisely fulfilling the constitutional order as the Framers designed it. As Sen. Roy Blunt (R-Mo.) summed up, “I don’t think that the emergency-declaration law was written to deal with things that the president asked the Congress to do, and then the Congress didn’t do. It’s never been used that way before.” It shouldn’t be now.
To Blunt’s point, if the president can wave an “emergency wand” to supersede Congress in any episode of disagreement, it would render the rest of the Constitution meaningless. This is not just a matter of the potential for future Democratic presidents to declare national emergencies on issues in which he or she believes Congress should take further action. That is secondary to the long-term damage this sort of unilateral behavior will do to our constitutional system—a system that depends upon an energetic legislature able to stand up to an energetic executive. “If the legislature cedes its power of the purse, autocracy will follow, something the Framers fought a revolution to avoid.”
Republicans in Congress have made such constitutional arguments central to their message in recent years. In January 2011, the newly elected Republican House majority instituted a rule change requiring lawmakers to cite constitutional authority in proposed legislation. Republicans criticized President Barack Obama for creating the Deferred Action for Childhood Arrivals program without congressional assent and for altering the requirements of the Affordable Care Act. Conservative Republicans like Sen. Mike Lee (Utah) have called for a reinvigoration of federalism, including a proper balancing of power between the executive and legislative branches.
An “emergency” is something that is unforeseen, doesn’t allow the political branches the time to consult, and thus requires immediate action. It is not a persistent issue that has developed over years and is the subject of actual legislation. The need for a coherent and effective immigration policy is obvious, but the impetuous declaration at issue is not a way to achieve anything other than weakening our constitutional government that has made the United States a world-leading paragon of freedom.
To stay true to the needs of the nation and their party’s conservative tradition, Senate Republicans should support the resolution disapproving the emergency declaration. To do otherwise would forsake the Constitution’s system of checks and balances, and invite a dangerous erosion of the legal architecture protecting this country from autocratic tyranny.
Stuart M. Gerson is a Member of the Firm Epstein Becker Green and a founder of Checks and Balances, a conservative legal group. He previously served as Assistant Attorney General for the Civil Division under President George H.W. Bush from 1989 to 1993 and then as Acting Attorney General of the United States. Jerry Taylor is the President of the Niskanen Center, a center-right think tank in Washington, D.C.