National emergency funding of border wall is unconstitutional

National emergency funding of border wall is unconstitutional
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The effort by President TrumpDonald TrumpHarris stumps for McAuliffe in Virginia On The Money — Sussing out what Sinema wants Hillicon Valley — Presented by Xerox — The Facebook Oversight Board is not pleased MORE to unilaterally increase funding for the border wall is unconstitutional for a simple but little noticed reason. The statute from which he claims to derive authority, known as the National Emergencies Act, is itself unconstitutional. The legal debate has focused so far on presidential emergency powers. However, the more immediate issue is presidential budgetary powers, which are sharply limited by the Constitution. The national emergency declaration by Trump to spend more than Congress authorized for border security violates those limits.

Presidential emergency powers have been received skeptically ever since the Supreme Court declared unconstitutional the seizure of steel mills by President Truman during the Korean War. In that case of Youngstown in 1952, Justice Robert Jackson famously wrote an opinion that presidential emergency powers are tied to legislative action. When Congress makes a legislative choice, the president has little power to override it. When it gives the president emergency powers, there is also little he cannot do.


Trump argues that in the National Emergencies Act, Congress has given him precisely what it denied Truman, which is the power to make emergency judgment calls. Further, he argues that Congress left it to the president to decide what constitutes an emergency. His opponents argue that Congress had a narrower idea of emergency in mind. On this very issue of statutory interpretation, the president might win. That, however, is not the end of the matter. In fact, it is not even the proper beginning.

To make constitutional sense of the emergency wall funding called for by Trump, the key case is not Youngstown, but Bill ClintonWilliam (Bill) Jefferson ClintonBill Clinton shares video update after release from hospital Biden, Democrats risk everything unless they follow the Clinton pivot (they won't) Giuliani picks Abe Lincoln filter for attack against McAuliffe MORE versus New York, which involved a challenge to the Line Item Veto Act. This law was passed in the 1990s in an effort to curb the federal deficit by giving the president a “line item veto” over specifically earmarked funds. President Clinton eventually used the law to veto a few provisions of a 1997 budgetary law, most importantly, a large transfer of funds to state governments intended to defray the costs of Medicaid administration. New York brought suit.

The Supreme Court declared the Line Item Veto Act unconstitutional in 1998 because it gave the president the “unilateral power to change the text of duly enacted statutes.” When a bill passes through both chambers of Congress, the Supreme Court held, the president has just two options. He can sign it into law or he can veto it. What the president may not do is approve certain parts of a bill while rejecting others. He may not tinker or proceed piecemeal even if Congress prefers that option. On this point, the Clinton opinion could hardly be clearer. It does not matter whether Congress had “anticipated that the president might cancel” some of the enacted items. Short of amending the Constitution, Congress is disabled from “altering the procedures” already set out in the legislative process.

In other words, the authority to determine the content of bills lies with Congress, and Congress alone. Even if Congress does want to give the president the power to override bills part by part, the Constitution forbids it. Thus, Congress was constitutionally disabled from giving the president a line item veto. If the president wants to change a particular item in a statute, he must do it through new legislation. There are no shortcuts.

If the National Emergencies Act really allows the piecemeal override of budgetary acts, as Trump claims, then it is unconstitutional because it is attempting the same thing as the Legislative Veto Act. One month ago, Trump signed into law the bipartisan Consolidated Appropriations Act, which capped wall funding at less than $1.4 billion. By using the National Emergencies Act to boost the figure to $8 billion, Trump is effectively rewriting the new law, just as Clinton, by using the line item veto power, was effectively rewriting the budget in 1997. That Trump is rewriting to spend more, while Clinton rewrote to spend less, federal funds is without constitutional significance. If anything, given the concern of the framers about executive profligacy, this could make this violation even worse.

Most people can understand this, even without reading case law. The authority to decide on the content of a bill is constitutionally delegated to Congress. It alone has the power to write the laws. That authority is the source of much of the power of the legislative branch in negotiating with the executive branch. The president undermines that authority if he fails to comply with the laws as written. That is the common sense principle the Supreme Court upheld in Clinton. It remains common sense today.

Paul Kahn is the Robert Winner professor at Yale Law School. Kiel Brennan Marquez is a law professor at the University of Connecticut School of Law.