How can Trump bypass Congress to build a wall? Because Congress already said he can
By Ernest Istook
How can President Trump bypass Congress by declaring a national emergency?
That is the right question to ask, no matter whether you approve building a border wall or not.
Nothing in the Constitution expands a President’s power if Congress balks at his plans. Article One gives Congress “all legislative powers” including control over spending. The President then is charged with faithfully executing our laws.
The Constitution says zilch about bypassing Congress. When President Obama announced, “Where Congress won’t act, I will,” the federal courts ruled against his effort to bypass Senate confirmation of his nominees and ruled against his DACA program (“Deferred Action for Childhood Arrivals”).
The Constitution applies equally to Obama and Trump. The difference is that Trump is following a method actually established by Congress—a method often used by other Presidents. Created in 1976, the National Emergencies Act (found in law books at 50 U.S.C. § 1601–1651), is a catch-all law granting special power for a President to bypass the usual legislative processes by declaring a national emergency.
Congress has been giving away its power for decades. The 1976 law replaced hundreds of prior laws whereby Congress gave special emergency authority to the chief executive.
A companion statute (codified at 10 U.S. Code § 2808) allows the President, upon declaring an emergency, to create military construction projects, using funds originally intended for other military construction (including family housing). That allows tapping into over $10-billion that Congress last September approved for those purposes. The funding involves the Army Corps of Engineers, with its military and civilian workforce of 37,000 people and decades of experience. This is why building a border wall is becoming a military project.
The law does not specify what is or is not a national emergency. Instead, it relies on a safeguard that Congress can reverse any Presidential declaration. But even if the House and Senate agreed to undo Trump’s order, it likely would require a two-thirds super-majority to override a certain White House veto.
As a practical matter, the situation guarantees a court challenge that ultimately would reach the Supreme Court. Justices would be asked to decide whether Congress can properly expand Presidential power in this way and whether restrictions can and should be created by the Supreme Court.
At the heart of everything is a long-unresolved problem: Members of Congress regularly pass the buck to a President to decide tough issues rather than accepting responsibility themselves.
Trump’s controversial travel ban was based on a 1965 law that delegated Congress’ constitutional immigration authority to the President. His imposition of tariffs, such as on China, uses power granted by Congress in 1962. President Obama’s controversial $1.7-billion deal with Iran went forward because Congress in 2015 quietly passed a law saying that whatever he negotiated would stand unless Congress later reversed it (which would have needed a two-thirds vote to override an Obama veto).
Consistently, Presidents are exercising powers not given to them by the Constitution but instead delegated to them by a risk-averse Congress–which then gripes about the actions but won’t accept accountability.
Whether it involves a border wall, tariffs, or sending money to Iran, the real problem is that Congress evades its Constitutional duty to be responsible for all legislation. Senator Mike Lee (R, Utah) is leading an effort to fix this, with his Article One Project requiring Congress to make decisions which are its responsibility—and to take the heat for them.
Trump is not usurping power; Congress gave it to him. Lawmakers should blame themselves if they don’t like how he uses it.
Former U.S. Congressman Ernest Istook teaches political science at Utah Valley University.