OLOWSKI: Blame Congress For The National Emergency

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Lew Olowski Attorney
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The president declared a national emergency to build a wall on the southern border. In doing so, he is exercising his constitutional and statutory authority. Fault for this problem lies with illegal border-crossers. But if Americans want to blame their own government, then Congress is a better scapegoat than the president.

With his emergency declaration, Trump claimed authority to spend at least $6.7 billion on border-wall construction in addition to the $1.4 billion that Congress just appropriated for that purpose. The president has a constitutional right to build this wall. That’s because the Constitution separates power among the legislative, executive, and judicial branches of government. Separate powers are independent powers.

Defending the national border is one of the separate, independent powers of the presidency. The president does not need to declare a national emergency to exercise this power. Rather, national defense is his basic constitutional duty. By trusting the president with such responsibility, the Constitution also vests him with the inherent power to fulfill it. To insist that separation of powers requires Congress and the president to unite on this issue is a contradiction: such mandatory unity is the opposite of separation.

Regardless, in this instance the president is, in fact, united with Congress. He may disagree with Congress on the amount of money it should have appropriated this year. But the president is not relying on unappropriated money or new permission for building the wall. Instead, he is relying on Congress’ already-appropriated money to build an already-authorized wall. His power to declare a national emergency is described in the National Emergencies Act. And Congress’ “construction authority” statute cited in President Trump’s emergency declaration grants him discretion to reallocate funds under a national emergency.

These statutes are the highest, most important expression of Congress’ intent. They are more authoritative than the text of any individual Congressman’s email blasts or media interviews. Congressmen try to have it both ways by passing statutes authorizing executive action while also criticizing such action, but this fact reflects poorly on Congress, not the president.

Of course, Congress has separate powers, too. One of these powers is the power to levy taxes and grant funds to the president: the “power of the purse.” Congress exercised this power when it granted $1.4 billion for border wall construction in 2019 — and also when it appropriated the rest of the money that President Trump will tap into. Hence the president’s decision to fill the 2019 appropriation gap with money from Congress’s prior appropriations.

If any branch of government is violating the Constitution’s separation of powers, it’s Congress. No branch of government can abdicate its duties. Thus, it would be unconstitutional for the president to default his responsibility for national defense by outsourcing border security to Congress. Likewise, it would be unconstitutional for Congress to forfeit its “power of the purse” and outsource the national budgeting process to the president. No branch of government can delegate its core function to any other branch. This principle is called “the nondelegation doctrine.”

In this case, however, Congress has not delegated its prerogative to appropriate funds. The funds have already been appropriated. And, in the statutes President Trump cited in his emergency declaration, Congress even instructed the president on how he can use such funds. Money, once raised and appropriated, does not become untouchable to both branches. Even the nondelegation doctrine permits Congress to delegate practical discretion on how exactly to spend the funds it appropriates.

In any case, some spending authority does inherently belong to the president. Everything the president does — from flipping a light switch in the White House to publishing an executive order on a website — costs money. If the president has any inherent authority at all, then he has some inherent authority to spend money in furtherance of his constitutional duties: especially money that Congress already appropriated. Under President Obama, scholars even argued that the president can unilaterally incur up to trillions in brand-new national debt — let alone to merely follow Congress’s guidance on how to reallocate $6.7 billion that Congress already appropriated under Congress’ own statutes.

The buck stops with the president. But the president can’t do his job free-of-charge. So, in some cases, the bucks start with him, too.

Lew Olowski is an attorney and formerly a clerk to Radovan Karadzic, president of the Bosnian Serb Republic, at the United Nations International Criminal Tribunal for the former Yugoslavia. Lew served under Peter Robinson, who is among the world’s premiere international criminal trial lawyers litigating war crimes, genocide, and crimes against humanity. He is a graduate of Georgetown Law School.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.