Reclaiming the power of the purse
National leaders who dispense the nation’s treasure as they please, unfettered by the consent of elected lawmakers, are often rightly regarded as despots. In granting Congress the power of the purse among its system of checks and balances, the Constitution specifically denied the president that prerogative, and thereby erected a bulwark against despotism — which is apparently news to President Donald Trump.
When he declared a national emergency last year and used it to justify spending more money on his border wall than Congress was willing to appropriate, Trump didn’t just ignore the legislative branch’s druthers. He made a mockery of that foundational constitutional principle. By cannibalizing funds that Congress appropriated for specific Pentagon projects and diverting them to the wall — the very wall he said Mexico would pay for — the president usurped power.
Last week, a federal appeals court panel agreed and allowed a lawsuit brought by the Democrat-controlled House to proceed. The suitmakes an exceedingly simple and correct claim: that federal funds cannot be spent by the president without the say-so of both the House and the Senate. That, said
Judge David Sentelle of the U.S. Court of Appeals for the District of Columbia Circuit, often referred to as the nation’s second-most-powerful court, is an “ironclad constitutional rule.”
The Trump administration has argued that theHouse has no legal right, under any circumstance, to sue the president over arguments between the two branches. That stance was thrown out by the full appeals court in August, but the administration continued to press its case on Trump’s wall. Sentelle wasn’t buying it.
“To put it simply,” the judge wrote, the Constitution’s “Appropriations Clause requires two keys to unlock the treasury, and the House holds one of those keys. The Executive Branch has, in a word, snatched the House key out of its hands.” That gives theHouse cause to contest Trump’s usurpation of funds, wrote the judge, an appointee of President Ronald Reagan, joined by two judges appointed by President Barack Obama.
The wall is a current point of political debate, but the principle over which theHouse is suing could apply to an incalculable and unpredictable number of disputes in future administrations, Republican or Democrat. Would Republicans like to contemplate a Democrat in the WhiteHouse who, citing Trump’s precedent in plundering funds for priorities of his choosing, proclaims an emergency to raid money earmarked by Congress for, say, farm subsidies and diverts it to climatechange research? We can well imagine GOP’s howls of constitutional offense — and they would be justified.
House Democrats have been consistently opposed to Trump’s wall, and they have opposed funding it, as is their right. Trump is within his rights to press for funding the wall. But he goes well beyond what the Framers had in mind by checks and balances in pretending the House’s power to appropriate funds, or deny them, can be wished away by wielding the word “emergency.”