As frustrating as it may seem to both sides in the nation’s heated debate over a border wall with Mexico, constitutional experts say the ongoing battle between President Trump and Congress over the wall’s funding is how our system of government is supposed to work.
Called “separation of powers” or “checks and balances,” the system was designed by our Founding Fathers to keep any single branch of government — executive, legislative, or judicial — from gaining too much power and threatening our freedoms as citizens.
Here’s how it works: Congress (the legislative branch) makes the laws and controls government spending. The President (the executive branch) administers and enforces the laws. The U.S. Supreme Court (the judicial branch) is the final authority on interpreting the laws and how they should work. Each branch also has certain powers to constrain the power of the other branches.
For instance, the nine U.S. Supreme Court justices serve for life once they are appointed by the President and approved by the Senate. But in 1937, frustrated with the court’s outlawing of his New Deal plans to get Americans back to work during the Great Depression, FDR provoked the greatest battle to date among the three branches when he asked Congress for the power to appoint an additional justice for any member of the Supreme Court over 70 years of age who did not retire.
Chief Justice Charles Evans Hughes appealed openly to the U.S. Senate to reject the proposal, which the Senate did, narrowly averting a constitutional crisis and leaving the system of checks and balances intact.
The border wall struggle between the executive and legislative branches has been ongoing now for more than two years. Experts say it may ultimately have to be resolved by the U.S. Supreme Court. And, again, that’s exactly how it was meant to work in our nation’s long history of disputes between the President and Congress.
“I think a lot of people thought that, when Trump was elected, he was really going to push (the constitutional) system to the limit, and he has,” says Chris Bryant, a professor of constitutional law at the University of Cincinnati Law School. “But so far, at least, the system has really held up. It has made him conform to the law, and I think it will continue to do so.”
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Peter Shane, professor of law at Ohio State University Moritz College of Law
Peter Shane, a professor of law at Ohio State University Moritz College of Law, agrees that Trump isn’t the first president to test our system of checks and balances. But he says the system can be threatened, as it is now, when one branch pushes its powers to the limit or when another branch turns over too much of its power. He fears that both have been happening in recent decades, and the ongoing border wall funding dispute is an outgrowth.
“It’s not entirely the executive branch (Trump) trying to usurp the powers of Congress,” Shane says. “It’s also a matter of Congress sitting on its hands.”
The struggle over the border wall is now more than two years old and shows no sign of being resolved through compromise. Here’s how it’s played out under our system of checks and balances so far.
Less than a week after taking office in 2017, Trump signed an executive order calling for the construction of a wall along the U.S. border with Mexico.
But under the U.S. Constitution, it’s not that simple. Congress — not the President — ultimately controls the purse strings of how tax money is raised and how it’s spent in America. And a majority of Congress members believe a wall is an unnecessary expense and sends the wrong message about our nation’s values.
Since then, negotiations between the two branches of government have faltered repeatedly over the scope and expense of the border wall — with total costs for the project ranging from a Republican estimate of $25 billion to the Democrats’ $67 billion.
Because the nation’s budget requires approval by both Congress and the President, the last breakdown in negotiations resulted in the longest government shutdown in the nation’s history — 34 days from December of 2018 to January of this year. If the president refuses to sign a budget sent to him by legislators, Congress must then gather a two-thirds majority in both of its bodies — the U.S. House of Representatives and the U.S. Senate — to override his veto.
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Jonathan Adler, professor at the Case Western Reserve University Law School
Complicating matters even more, over the last 100 years or so, Congress has handed over special powers to the President in national emergencies, giving some of its legislative powers to the executive branch, says Jonathan Adler, a professor at the Case Western Reserve University Law School.
“We have a long history of Congress delegating a lot of authority to the executive branch, and then complaining when the President uses that authority in ways Congress doesn’t agree with,” Adler says.
Bryant says that’s because Congress has recognized “that there are times when urgent things will happen and (the President) is going to have to take action faster than (Congress) can rule on it.”
It all started in 1917 when President Woodrow Wilson, realizing that America was on the verge of going to war against Germany, asked Congress for special emergency powers to create a Shipping Board that would speed up the manufacture of transport ships. During the 1930s and 1940s, FDR was granted numerous emergency powers by Congress to deal with the crises of the Great Depression and World War II.
But when President Truman decided he needed to take over the nation’s steel plants for the war effort in Korea in 1951, the U.S. Supreme Court decided enough was enough. It stepped in and said the proclamation was not justified under the Constitution because the Korean War was not a direct a threat to national security the way World War II had been.
Finally, in 1976, with the president’s emergency powers growing in every direction under nearly every administration, Congress passed the National Emergencies Act in order to limit the types of emergencies in which the president could invoke his special powers. That limit is 136 different types of emergencies, including military emergencies when the nation’s security is at risk.
Since the act was passed, presidents have declared 59 national emergencies, with more than 30 of them still in effect. President Obama, too, used his special powers, declaring a national emergency during the 2009 swine flu epidemic so that hospitals could move emergency rooms offsite to speed treatment and protect noninfected patients.
But constitutional experts say Obama’s maneuver around Congress to spend $20 million to help thwart the spread of swine flu pales in comparison to the $5 billion that Trump wants for his border wall. Trump has invoked three statutes that are part of the National Emergencies Act, including one allowing the executive branch to redirect Defense Department construction funds in a situation of national emergency.
After Congress mustered a majority of votes in both the House and the Senate to override Trump’s emergency declaration, Trump vetoed the measure on March 15. So far, Congress doesn’t have the two-thirds majority of votes needed to override his veto.
States have now entered the fray, hoping the judicial branch will settle the dispute. A coalition of 16 states, including California and New York, recently challenged Trump in court over his plan to use emergency powers to spend billions of dollars on his border wall. The suit, filed March 11 in Federal District Court in San Francisco, argues that the president does not have the power to divert funds for constructing a wall along the Mexican border because it is Congress that controls spending.
Ohio hasn’t joined the suit against the President because, as a spokesman for the Ohio Attorney General’s office said, “we were not invited” to be part of the coalition. However, a spokesperson for the California Attorney General’s office, where the suit originated, says in an email: “We welcome all states to join us in our lawsuit against the administration’s unconstitutional declaration.”
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Chris Bryant, professor of constitutional law at the University of Cincinnati Law School
The three constitutional experts say they don’t think the U.S. Supreme will rule directly on whether Trump has the right to declare a national emergency at the border. Instead, they believe the court will likely rule that the three specific statutes Trump is citing in his defense don’t permit the use of money for a border wall.
More specifically, Trump’s case may falter legally on the use of military money to build a border wall, Bryant says.
“I think the President has a legitimate concern about border security, but it’s not like we’re being invaded by Mexico. It’s really about law enforcement, not about war or invasion,” he explains.
Based on that logic, he says, “the courts may say, ‘We need to draw a line here. Are we in an emergency that requires the use of the military?’ I believe the courts will say we’re not in that position.”
Shane points out that a second emergency statute cited by Trump — for stopping the flow of drugs into the country — is limited to building roads and fences, not walls.
Bryant believes there’s also a chance that enough Republicans in Congress may defect from Trump’s position to override his veto. Republicans can rightly fear that, if Trump uses his emergency powers to get his way on a hot-button issue like the border wall, the Democrats may follow suit if they recapture the White House.
Some Republican members of Congress “may be thinking that a President (Kamala) Harris could decide the environment is a national emergency and order every person in America to purchase an electric car by 2030,” Bryant says. “If you think about it, it’s not that different.”
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