Trump’s national emergency declaration is an unlawful Presidential act

President Donald Trump is acting in an unconstitutional and unlawful manner by spending $8 billion to build a wall without congressional authorization of the funds. Never before in American history — not once — has a president claimed power to spend money after Congress refused to appropriate the funds. President Trump’s action is thus a violation of the most basic principles of separation of powers.

Under the Constitution, virtually every major action by the federal government requires the approval of two branches of government.

Enacting a law usually requires passage of a bill by Congress and the signing of it by the president. Enforcing a law necessitates an enforcement action brought by the executive branch and conviction by the judiciary. For federal judges and cabinet officers and ambassadors, there must be nomination by the president and confirmation by the United States Senate. Going to war requires a declaration by Congress and action by the president as commander in chief.

When it comes to spending federal funds, the Constitution could not be clearer. It says: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”

Under the Constitution, Congress has the power of the purse and it is impermissible for the president to spend money without specific statutory authorization. Congress has not authorized funds to build the border wall.

President Trump has continually implored Congress to provide this money, but it has consistently refused — even when Republicans controlled both houses of Congress during the first two years of his presidency. The Supreme Court’s landmark decision in Youngstown Sheet & Tube v. Sawyer, in 1952, is particularly instructive. Congress repeatedly considered and rejected giving the president authority to seize industries in emergencies for the sake of national security.

Faced with a work stoppage in the steel industry because of a labor dispute, President Harry Truman seized the steel mills to ensure adequate production during the Korean War. President Truman claimed that this was essential for national security and the war effort. The Supreme Court ruled against President Truman and held that his action violated separation of powers.

President Trump likely will claim the authority to fund the wall under the National Emergencies Act of 1976. One provision says that if there is a national emergency, funds in the Defense Department budget that are not “obligated” can be used for construction projects to support the armed forces. It says: “Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize Secretaries of the military departments to undertake military construction projects, that are necessary to support such use of the armed forces.”

But the border wall hardly can be described as a military construction project needed to “support . . . the armed forces.” The statute simply does not authorize this action.

President Trump, in claiming a national emergency, pointed to about five dozen incidents where a president has claimed a national emergency. The vast majority were not controversial, such as imposing sanctions against foreign governments or terrorist groups. Never before has a president asked Congress for funds and responded to a refusal by invoking emergency powers and the right to do it anyway. Never before has a president usurped Congress’s spending power in this way.

I would think that even Republicans who support the president and believe in building the wall would be deeply distressed at such a claim of broad presidential emergency powers. President Trump’s action opens the door for future presidents to claim broad power to spend federal money without congressional approval. Much more important than this $8 billion is the principle that Congress must explicitly approve the expenditure of federal funds.

The framers of the Constitution could have, but did not, give the president special powers in cases of emergency. Separation of powers – and checks and balances – are crucial constitutional protections, even when there is an emergency.

It’s hard to imagine any court accepting the claim of an emergency. This is President Trump trying to carry out a campaign slogan, not his dealing with a new emergency situation. President Trump is acting unlawfully. The courts should quickly say so.