National emergencies and the US Constitution
In February 2019 President Trump signed the border security spending bill – ending any threat of another government shutdown – and issued a declaration of national emergency under the National Emergencies Act of 1976. He intends to take executive action to re-allocate US$6 billion+ from funds appropriated by Congress for other purposes – principally out of the Defense budget – to pay for a border wall with Mexico.
Under the US Constitution, it is explicitly provided that the "power of the purse" resides with the Congress. Only Congress can appropriate money. The US president cannot override Congress' decisions on appropriations. Similarly, Congress cannot appoint the president's cabinet, or make a treaty with a foreign power. This is the separation of powers under the Constitution and it is what is at the heart of Trump's declaration of a national emergency.
While these powers are absolute, they are also theoretical. In practice, Congress has ceded certain powers to the president in certain exceptional circumstances, especially those surrounding declared national emergencies. The question here is what constitutes a national emergency, who gets to declare a national emergency, and what role the Congress plays in overseeing such a declaration.
It should be noted that since this law came into effect, presidents of both parties have declared national emergencies 60 times, but have never done so in order to circumvent Congress role in appropriating legislative initiatives.
While there has been significant commentary on whether there is a true "emergency" on the southern border – and hence whether the president's declaration is warranted – the fact is that the National Emergencies Act does not define what an "emergency" is. It simply states that the president may declare one ("the president is authorised to declare such national emergency"). The courts will therefore likely defer to the president's judgment on the declaration, leaving the heart of the legal matter to the issue of whether Trump has violated the separation of powers.
There will be legal and political challenges to Trump’s declaration — and underlying that challenge is the issue of both separation of powers and the oversight of the presidency in matters of national security
The political fight
Politically, the House of Representatives will initiate action (under the National Emergencies Act) to pass a resolution of disapproval of the president's declaration. Once that passes the House, it will move to the Senate.
In the Senate, the special procedures provide for a simple majority vote on this resolution within 18 days. So the 47 Democrats need only four Republican votes to reject what the president has done – and more than four Republicans have expressed serious reservations about the president's move. However, if the resolution of disapproval can pass Congress, Trump will likely veto it – and a vote to override that veto will take a two-third's supermajority in both the House and Senate. Trump may ultimately win this fight, but he may well sustain a majority vote in the Republican Senate against him.
The legal fight
Lawsuits have been filed by 16 US states and, potentially, the House of Representatives. Non-government and special interest groups have already begun their legal fights. As discussed above, the core of the legal fight is over the constitutional power of Congress to appropriate funds. This is the "power of the purse". By taking executive action to unilaterally re-allocate funds appropriated by Congress, is Trump in violation of the Constitution? Judges are likely to issue injunctions stopping the president from re-allocating the funds. Trump will appeal, and it will take months to resolve (Trump's Muslim immigration ban took 18 months to be resolved – in his favour – by the Supreme Court). But there can be no wall spending under the national emergency declaration if the injunctions are in effect.
This is the most important test of presidential power since 1952, when President Truman moved to seize the steel mills in the midst of the Korean War. The Supreme Court ruled against him and said he could not take executive action on an issue where Congress had rejected legislation on the issue. Here today, Congress has not approved US$6 billion for the wall. The question is whether the president has the power to direct the spending of that money without Congress' OK.
Congress will likely ask Trump’s cabinet and intelligence chiefs to publicly testify about the veracity and acuteness of the so-called emergency (which the intelligence chiefs did not include as a major threat facing the nation when they briefed their findings in January).
What happens in the months ahead will decide the scope of presidential power for decades to come.