Although Donald Trump had a Republican majority in Congress for the first two years of his presidency, he failed to obtain funding to build his signature wall between the United States and Mexico. Yet now that the Democrats control the House, he is more determined than ever to build his wall.
But never mind the Congress, just declare a national emergency and go ahead anyway.
The National Emergencies Act (NEA) of 1976 formalized the emergency powers of the president. Congress has defined 136 emergency powers. Since the passage of the NEA, every president has declared national emergencies, 60 in all.
On February 15, Trump declared a national emergency, “concerning the Southern Border of the United States,” his fourth, to fund his border wall and placate his anti-immigration base and those they follow in conservative media who are more preoccupied with a border wall than Trump is.
Congress promptly approved a resolution to negate Trump’s emergency declaration, but he just as quickly vetoed the measure. It was his first veto. On March 26, the House failed in its attempt to override the president’s veto.
Just before Trump declared his national emergency, NPR’s Audie Cornish asked an unsympathetic member of Congress, Sen. Angus King (I-Me.), his opinion on Trump’s plan:
CORNISH: So you voted in support of the funding compromise that is set to be signed. What’s your reaction to the news that the president could declare a national emergency even as he signs that bill?
KING: My reaction is, Article 1, Section 9 of the Constitution says no money shall be drawn from the Treasury but in consequence of appropriations made by law. To paraphrase Hugo Black when he talked about the First Amendment, no money to me means no money. This is a gross violation of the very structure of the Constitution, which says that the people’s representatives are the — have the power of the purse. Article 1 is the part that’s all about Congress and the powers of Congress, and it says that you’ve got to have an appropriation. The emergency here, Audie, is that the president didn’t get what he wanted from Congress. It’s not an emergency at the border.
How strange that a member of Congress would term some action to be a gross violation of the very structure of the Constitution. Practically everything Congress does, and everything Senator King votes for, is a gross violation of the Constitution. Consider just these 20 examples.
Medicare and Medicaid are gross violations of the Constitution. The Constitution nowhere authorizes the federal government to fund anyone’s health care or health insurance.
AMTRAK is a gross violation of the Constitution. The Constitution nowhere authorizes the federal government to own or operate a passenger railroad service.
Refundable tax credits are a gross violation of the Constitution. The Constitution nowhere authorizes the federal government to take money from those who pay taxes and give it to those who don’t.
Pell grants and federal student loans are gross violations of the Constitution. The Constitution nowhere authorizes the federal government to pay for anyone’s education.
Social Security is a gross violation of the Constitution. The Constitution nowhere authorizes the federal government to have a retirement or disability program.
Welfare is a gross violation of the Constitution. The Constitution nowhere authorizes the federal government to have a safety net, to fight poverty, or to help the disadvantaged or underprivileged.
The Transportation Security Administration (TSA) is a gross violation of the Constitution. The Constitution nowhere authorizes the federal government to provide security for private businesses.
NASA is a gross violation of the Constitution. The Constitution nowhere authorizes the federal government to explore, or conduct experiments in, outer space.
The Tennessee Valley Authority (TVA) is a gross violation of the Constitution. The Constitution nowhere authorizes the federal government to provide electricity for anyone.
Federal gun-control laws are a gross violation of the Constitution. The Constitution nowhere authorizes the federal government to infringe the right to keep and bear arms.
The Corporation for Public Broadcasting (CPB) is a gross violation of the Constitution. The Constitution nowhere authorizes the federal government to broadcast, or pay for the broadcasting of, anything.
Food Stamps are a gross violation of the Constitution. The Constitution nowhere authorizes the federal government to feed anyone.
A federal minimum wage is a gross violation of the Constitution. The Constitution nowhere authorizes the federal government to interfere with the employer/employee relationship.
Farm subsidies are a gross violation of the Constitution. The Constitution nowhere authorizes the federal government to subsidize a particular segment of the economy.
The Equal Employment Opportunities Commission (EEOC) is a gross violation of the Constitution. The Constitution nowhere authorizes the federal government to prevent or prosecute acts of discrimination.
The Drug Enforcement Administration (DEA) and the war on drugs are gross violations of the Constitution. The Constitution nowhere authorizes the federal government to have anything to do with the consumption, medical, or recreational habits of anyone.
The National Endowment for the Arts (NEA) and the National Endowment for the Humanities (NEH) are gross violations of the Constitution. The Constitution nowhere authorizes the federal government to subsidize art or culture.
The Family and Medical Leave Act (FMLA) is a gross violation of the Constitution. The Constitution nowhere authorizes the federal government to mandate to private businesses what they should include in their fringe benefits.
Funding for Planned Parenthood is a gross violation of the Constitution. The Constitution nowhere authorizes the federal government to fund any private organization, whether it performs abortions or not.
The Department of Housing and Urban Development (HUD) is a gross violation of the Constitution. The Constitution nowhere authorizes the federal government to have anything to do with housing.
I could easily come up with 20 more and then 20 more after that.
The United States was set up as a federal system of government where the states, through the Constitution, granted a limited number of powers to a central government — not the other way around. As James Madison succinctly explained in Federalist No. 45, “The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State governments are numerous and indefinite.” There are about 30 enumerated congressional powers listed throughout the Constitution. Everything else is reserved to the states — even without the addition of the Tenth Amendment. That is why it is so easy to find example after example of congressional gross violations of the Constitution.
The Constitution is neither a flawless document nor a libertarian document. And its ambiguous clauses — the “general welfare” clause, the “commerce” clause, and the “necessary and proper” clause — have been used by Congress to justify increasing the size and scope of government. But it would certainly be better for the cause of liberty and property if the government at least followed its own Constitution.
Although Senator King is certainly correct in pointing out Trump’s gross violation of the Constitution, he, like nearly every other member of Congress, is just as guilty of gross violations of the Constitution.
