National Emergencies

"Tonight I will speak directly to these people and make the situation perfectly clear to them. The security of this nation depends on complete and total compliance."
--High Chancellor Adam Sutler (V for Vendetta)

President Trump's declaration of a national emergency to fund a $5+ billion wall across the southern border has partisans once again choosing sides. Those for it argue that it is necessary for national security. Those against it argue that it is beyond the president's legitimate authority to unilaterally fund government activities.

The latter argument is correct. Declaring a national emergency to fund a project for the executive branch is not just an end around Congress, but an end around the Constitution. Article 1 gives Congress sole power of the purse.

As Ron Paul observes, Trump's situation is hardly unprecedented, however. Many presidents, at least as far back as Lincoln, have used so-called national emergencies to expand their power. In fact, Congress itself has passed several statutes that provide for the president to bypass congressional authority by declaring emergency situations.

For example, the 1976 National Emergencies Act gives the president broad powers to declare emergencies for almost any reason. After informing Congress that an emergency has been declared, the president merely needs to renew the declaration once/yr. Since the act passed, 59 emergencies have been declared by nearly all presidents since the law's enactment (except for Reagan, I believe), with 31 of those still in effect.

Other laws that grant the president emergency powers include the Defense Production Act, the Communication Act, and the 2001 authorization for use of military force (AUMF).

Judge Nap argues that any presidential declaration of emergency cannot be contrary to the Constitution, and cannot authorize the president to spend money that Congress has declined to spend. Doing so now would be a dangerous precedent.

To be sure, but the counter to his argument is that the horse is already out of the barn. And many of those who oppose (support) Trump's move would surely support (oppose) a similar move from 'their' (the ‘other side’s) president.

Unless opponents of Trump's declaration are ready to rescind all past statutes that grant presidential powers associated with emergency declarations, then their objections can hardly be seen as sincere.