We are joining more than 100 former members of Congress from both parties to counter what we consider an assault by the president on one of the most fundamental principles embedded in our Constitution: separation of powers.
The Constitution gives Congress, and Congress alone, the power to fund our federal government. Article I, section 9 is crystal clear on this point. “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” Congress, as the lawmaking branch of government, is exclusively responsible for determining how the people’s money will be spent.
The founders of our nation believed this power over appropriations is the critical, defining feature of the legislature. “This power over the purse,” James Madison said, is “the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people.” The founders withheld this critically important power from the president. They knew from firsthand experience with tyrannical monarchs that kings cannot be trusted to spend the people’s money.
This is the stuff of Civics 101. President Donald Trump seems to have skipped that class. Frustrated with the Constitution’s allocation of power between the legislature and executive, the president has hijacked the appropriations power.
The president promised during the campaign to build a wall at the southern border, paid for by Mexico. When Mexico said no, the president tried to use U.S. taxpayers’ money. But Congress also said no. Readers will remember that in December, the president refused to sign Congress’ budget because it did not fund his wall. During the ensuing federal shutdown, the president continued to press Congress for $5.7 billion to build the wall. Congress debated the proposal and passed an appropriations bill that emphatically did not fund the wall. Congress allocated a fraction of what the president requested. And it granted those limited funds for pedestrian fencing in the Rio Grande Valley, not for the full-on concrete barrier that the president demanded.
The president could have vetoed Congress’ bill, but he did not. He signed it. The appropriations process set out in the Constitution had come to an end, and it left the president with no lawful way to spend federal money on a wall.
But the president bulled ahead. The same day he signed the appropriations bill, he declared a “national emergency” at the southern border and started building the wall. The “emergency” was fictitious, a fig leaf for his usurpation of Congressional power. His own declaration called the issue of unlawful immigration “long-standing,” the antithesis of an emergency, and he admitted in his announcement of the plan that he “could do the wall over a longer period of time” and “didn’t need to do this.”
Predictably, concerned parties, including Congress, asked courts to halt the president’s assault. And earlier this summer, a federal court in California temporarily blocked construction of the wall. On July 26, however, the Supreme Court put the California decision on hold and allowed construction to proceed. The president, in classic form, took to Twitter and mischaracterized the ruling as a complete victory. In reality, the court’s decision was an interim freeze and did not resolve the ultimate issue of whether the president had violated the Constitution. It instead allowed the government to begin construction because it had concerns about whether the particular plaintiffs in the California case were the right parties to bring a suit.
The Supreme Court’s decision does not foreclose lawsuits by different plaintiffs. One pending case in Texas shows particular promise. The county of El Paso and a nonprofit group have sued in federal court to halt the president’s power grab. The challengers, represented by a formidable, bipartisan team of attorneys, argue that the president had no authority under the National Emergencies Act to declare his make-believe emergency. They also contend that, emergency or not, the Constitution does not allow the president to commandeer funds that Congress refused to appropriate.
We fully support the challengers in El Paso. As members of a bipartisan group of more than 100 former members of Congress, we have filed a friend-of-the-court brief supporting the challengers and encouraging the court to restore the separation of powers.
As we explain in our brief, the key issue in this case is not whether a border wall is wise policy. On that question the former legislators who signed the brief in fact hold a range of views. Rather, the key issue is who gets to decide whether taxpayers should fund the wall. Even more fundamentally, the case will determine whether the most basic feature of our constitutional system, the careful division of powers among the branches of government, continues to work.
These issues transcend partisan politics. If this president can circumvent Congress to spend money on a wall, why couldn’t a future president give himself funds to build aircraft carriers, prisons or nuclear power plants? New office buildings for favored agencies? Benefits for foreign leaders? The Constitution says the people who are footing the bill, through their elected representatives, must sign off on these expenditures. Accepting the administration’s arguments would leave a gaping hole in Congress’ appropriations power, to the detriment of Republicans, Democrats and the nation as a whole.
Congress’ exclusive control of the purse sometimes stops presidents from doing what they want. That is a central and sensible feature of our constitutional checks and balances, not a bug. It requires the president to make his case for a project to the people, rather than using the federal coffers as the executive branch’s piggy bank. Readers across the political spectrum should hope that the court in El Paso and ultimately the Supreme Court will agree.