Republican Senators Embrace Their Power to Stop Trump’s Wall
(Bloomberg Opinion) -- President Donald Trump’s persistent threat to declare a national emergency and build a wall along the Mexican border is giving new life to the separation of powers — exactly the opposite of his intention. In a development that would bring a smile to the Founding Fathers if they could see it, Republican senators have started to say that it’s a constitutional problem for the president to attempt to bypass Congress by using an emergency to fund something that Congress clearly hasn’t authorized.
Republicans are realizing that if Trump can use an emergency to get around Congress, so too could Democratic presidents in the future. The senators are looking out for the interests of the Senate, which is to say their own interests.
As Senator John Cornyn, Republican of Texas, put it bluntly on Monday: “The whole idea that presidents — whether it’s President Trump, President Warren or President Sanders — can declare an emergency and somehow usurp the separation of powers and get into the business of appropriating money for specific projects without Congress being involved, is a serious constitutional question.”
This is the first time in the Trump administration that Republican members of Congress have hinted they may stand up against the president to protect the powers of the legislative branch.
In other words, Trump has finally gotten the creaky machinery of the Constitution’s separation of powers rolling into gear. His proposed usurpation of Congress’s power of the purse — by threatening divert federal funding from other projects to build the wall — is producing a constitutional backlash.
What’s remarkable about this turn of events is that it follows the script that was written into the structure of the Constitution — but has rarely worked as designed.
The founders’ idea was that each branch of government would stand up for its own interests, and thus create a balance between Congress and the president. “Ambition must be made to counteract ambition,” Madison wrote in one of the most famous passages in the Federalist papers (No. 51, if you’re following at home).
The basic idea is that if one branch tries to infringe on the powers of another — like if the president tries to spend money that Congress hasn’t itself allocated — the members of the branch under attack will mount a collective self-defense.
Even if they don’t act on principle, ran Madison’s theory, the branches would defend their turf on the basis of self-interest. No politician wants to be irrelevant, at least in theory.
When the president and one or two houses of Congress come from the same political party, it is often the case that lawmakers actually put the interest of their party ahead of the interests of Congress itself. That deeply undercuts the principle of separation. The self-interest model doesn’t consistently lead Congress to stand up for its own prerogatives when enough legislators identify their interests with that of the president’s party.
It takes a really extreme presidential action for representatives and senators from the president’s own party to break ranks. Declaring a national emergency to divert funds for a wall is that extreme action, as at least some Republicans are now realizing.
The reason doesn’t lie in the wall itself, or even in the fact that there’s no actual emergency regarding security.
Rather, what is awakening the Senate Republicans from their partisan slumber is the realization that the power to appropriate funds is the most significant, substantial power that Congress has to itself under the Constitution.
Congress has very clearly refused Trump the money to build a wall, not only in the current Congress but also in the last one, when both houses were held by Republicans.
If Trump can build the wall anyway, then it’s like Congress doesn’t exist. That’s why it would be such a dangerous precedent for the president to be able to get around clear congressional disapproval of spending on the wall, and build it anyway.
To be sure, there will still be Republicans who calculate that it’s more important to support the president than to stand up for their own branch of government. Even if a handful of Senate Republicans would be enough to pass a law explicitly prohibiting Trump from building the wall, Trump could veto such legislation. And there probably aren’t enough Republican votes in the House and Senate to get to a two-thirds majority that would be necessary to override the veto.
But if the system works correctly, it should not come to that. Trump should get the message that the Senate Republicans are trying to send, namely that his plan to get around the Constitution goes too far.
And if he doesn’t, there’s a third branch of government that is prepared to get involved: the courts.
The truth is actually a bit worse: In Philadelphia in 1787, Madison believed he had designed a Constitution that would block national parties from coming into existence. He was dead wrong, and acknowledged his error by becoming one of the founders of the national Republican Party just a few years later.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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