Recently, it has been reported that President Trump will sign an executive order declaring a national emergency at the southern border and thus, allowing him to acquire funds for the border wall, a campaign promise he has been touting again and again. Regardless of what you think about the border wall, it is important to remember that decisions like the one Trump is making have long-lasting consequences that will impact our republic for years to come and the executive order in question is no different. If this order stands it could undermine Congress’ spending powers, effectively making them dependent on whether or not the president is pleased with Congress’ decision.
Under Article 1 Section 8 of the U.S. Constitution, it is the power of Congress to: “lay and collect taxes in order to pay the Debts and provide for the common Defense and General Welfare of the United States” (Cornell Law).
However, with the new executive order that Trump intends to sign, these powers are subverted as he can now take funds that are not yet mandated to any agency and use them for the border wall (Baker and Cochran, New York Times). However, there is nothing in the Constitution that permits him to circumvent the spending powers of Congress, powers which are directly enumerated to them by the Constitution. It is true that previous presidents have used national emergencies in cases of great urgency, former President Obama did so to deal with a variety of issues ranging from foreign affairs to the H1N1 flu epidemic. President Bush and President Clinton also used national emergencies to address foreign affairs, but none of those cases went in direct conflict with Congressional disapproval on spending, something Trump is most certainly doing (Yen and Woodward, Associated Press). At least when Obama, Bush, and Clinton declared a national emergency, it was directly related to their implied powers over foreign affairs under Article 2 Section 2 of the constitution and therefore, based in part on their constitutional duties (Constitution Center.Org). They had a constitutional basis for their orders and didn’t tread on the spending powers of Congress, but unlike his predecessors, Trump is doing just that. As such, he has no constitutional basis for his orders.
Even if we were to disregard the legal ambiguities of this decision, the factual basis for this so called emergency is faulty at best and deceptive at worst. In 2000, the amount of illegal border crossing apprehensions was more than 1.6 million and 1.3 million in 2001. Comparatively, the number of illegal immigrants apprehended in 2018 was only 396,579 (Molloy, The Guardian). Even with the slight increases in November of 2018, the apprehensions are still going down overall (U.S. Customs and Border Protection). The constitutional complications that come with this decision are not worth the trouble for a problem that is improving already, and the American people know it. In a recent poll, 64 percent of Americans said they oppose using a national emergency to subvert Congress with only 34 percent supporting the move (Pramuk, CNBC). The people have spoken and so has the constitution. I can only hope that the president is listening, and if not, then perhaps the courts will.