Henningsen: Power Grab

Jan 30, 2019

It seems that the President is again considering a national emergency declaration as a way of circumventing Congress to secure funding for his border wall. And while it may be technically legal, presidential use of national emergency power to secure funds without Congressional approval sets a dangerous precedent.

National emergency power is meant for just that – emergencies. Previous presidents acted in good faith by reserving it for such occasions, knowing legislative appropriations would follow. It was never intended as a means to secure funds in defiance of a Congress refusing to grant them. After all, the Constitution assigns the power of the purse to the legislative branch alone. An invasion of that prerogative strikes at the very heart of our system of government.
 
Throughout our history legislators have jealously guarded their role as an independent branch of government. Even at times of one-party control of Congress and the Presidency – such as the era of Franklin Roosevelt – congressmen and senators of both parties united to defy presidential efforts they deemed threats to legislative independence.

But after World War II that independence diminished, as Congress colluded with presidents in the rise of what historian Arthur Schlesinger called the 'Imperial Presidency'. The classic example is 1964’s Gulf of Tonkin Resolution, which gave Lyndon Johnson a blank check to conduct war in Vietnam. But since Congress has thus far failed to authorize funds for the president’s border wall, in this instance we’d be looking not at another legislative concession of power, but an executive power grab.

This transcends party politics - going well beyond Shutdowns, walls, and immigration – and threatens to subvert our constitutional system of checks and balances. Far preferable would be for congressmen and senators to unite to protect the integrity of the legislative branch, crafting a solution that would command a veto-proof two-thirds majority of both houses. This would be a very tall order for legislators who routinely place party loyalty ahead of legislative independence and have long been accustomed to rolling over and playing dead in the face of presidential demands.

But let’s be clear: failing to pull together to protect the constitutional powers of the legislative branch sets the stage for an executive seizure of power Congress won’t get back.