Trump Cannot Build His Wall By Declaring a “State of Emergency.”

In the latest manifestation of head banging against wall temper tantrums, Trump has shutdown the government over wall funding and threatened to go one unconstitutional and impeachable step further. Trump is threatening to declare a “state of emergency” and build his wall under that authority. Having promised the American people that Mexico would pay for the wall Trump is now threatening to declare a “state of emergency” to compel the American taxpayer to pay for the wall.

Article I, Section 9 of the Constitution is clear on this.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.

Statutory law combines to impose penalties for the kind of misappropriation of funds suggested by the President.

The Misappropriation Act States:

(a) Appropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law. 31 USC 1301

The so-called Anti-Deficiency Act provides:

(1) An officer or employee of the United States Government or of the District of Columbia government may not —

(A) make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation 31 USC 1341

Finally, the law provides for a two year prison sentence for violating the Anti-Deficiency Act:

An officer or employee of the United States Government or of the District of Columbia government knowingly and willfully violating section 1341(a) or 1342 of this title shall be fined not more than $5,000, imprisoned for not more than 2 years, or both. 31 USC 1350

As for a mythical and completely fabricated “state of emergency” authorizing this unconstitutional and illegal circumvention of Congress, the relevant case would be Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). President Truman issued an Executive Order seizing the steel industry to avoid a potential steel strike that he believed would cripple the war effort. Yes, he had a stronger case, we were actually at war in Korea.

But the Supreme Court struck him down. In a 6–3 decision, the Supreme Court ruled as follows:

We are asked to decide whether the President was acting within his constitutional power when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation’s steel mills. The mill owners argue that the President’s order amounts to lawmaking, a legislative function which the Constitution has expressly confided to the Congress, and not to the President. The Government’s position is that the order was made on findings of the President that his action was necessary to avert a national catastrophe which would inevitably result from a stoppage of steel production, and that, in meeting this grave emergency, the President was acting within the aggregate of his constitutional powers as the Nation’s Chief Executive and the Commander in Chief of the Armed Forces of the United States . . .

The President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. The order cannot properly be sustained as an exercise of the President’s military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though “theater of war” be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation’s lawmakers, not for its military authorities.

Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute . . .

The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power, and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand.

This is a nation of laws, and not men. Trump is a President, not a king or dictator. If the American taxpayer is to pay for the wall, our Constitution and laws require that Congress make the decision to do so. That way, the American people can hold Congress accountable.



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Retired lawyer & Army vet in The Villages of Florida. Lifelong: Republican (pre-Trump), Constitution buff, science nerd & dog lover. Twitter: @KeithDB80