Noah Feldman: Democrats’ Compromise Strengthens Case for Trump’s Wall ‘Emergency’

By Feldman, Noah | Tribune-Review/Pittsburgh Tribune-Review, February 15, 2019 | Go to article overview

Noah Feldman: Democrats’ Compromise Strengthens Case for Trump’s Wall ‘Emergency’


Feldman, Noah, Tribune-Review/Pittsburgh Tribune-Review


In retrospect, it seems obvious that President Donald Trump would want to have his cake and eat it, too. That's essentially what he's doing by both signing a government funding bill that provides $1.375 billion for a barrier with Mexico and also declaring a national emergency to allocate other federal funds for the same purpose.

Presumably, congressional Democrats knew this could happen when they entered the compromise to keep the government open in exchange for barrier funding considerably less than Trump sought. Political calculation is their expertise. They must have realized that by handing Trump a "defeat" on wall funding, they were effectively forcing him to declare victory via an emergency declaration.

But Democrats may not have fully considered that by agreeing to the compromise, they have considerably weakened the coming legal challenges to Trump's emergency declaration and redirection of money.

Start with what I consider the best argument that, emergency or otherwise, Trump lacks the constitutional authority to spend money on a wall that Congress hasn't specifically allocated.

As I argued when Trump first started threatening to declare an emergency, what's really wrong with this idea is that it violates the separation of powers established by the Constitution.

Congress's most significant power is the power of the purse. Congress exercises that power by passing laws that tell the executive branch what activities will be funded. Logically, the opposite is also true: Congress has the power not to pass laws when it doesn't want the president to do something.

If Congress had chosen not to fund the barrier at all, then the president would be going directly against Congress's intent by taking money from other places in the budget and using it to build the wall.

In essence, it would be as if Congress didn't exist. That's the trigger for a serious challenge to the separation of powers.

Thus, had there been no funding for building the barrier, legal challengers to Trump's reallocation could have argued convincingly in court that Trump was effectively contradicting the express will of Congress. They could have said that two Congresses in a row had denied Trump the resources to build the wall. That would've been powerful evidence that Trump was circumventing the Congress's constitutionally mandated role of allocating funding.

However, by allocating $1.375 billion for a barrier of some kind -- even one not made of concrete -- Congress muddied the waters for this argument.

Now Trump's lawyers will be able to say that Congress supports building a wall, and that his re-allocation of funds is necessary to achieve Congress's expressed will.

No longer will it be possible for the challengers to say that Congress definitively rejected barrier funding. …

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