The Constitution and the Use of the National Emergencies Act to Build the Border Wall

Monday, January 14, 2019
By Paul Martin

by Joe Wolverton, II, J.D.
Monday, 14 January 2019

While President Trump continues mulling whether to use the National Emergencies Act as authorization to build his border wall, it’s critical for Americans to consider the constitutionality of this statute.

For those unfamiliar (how is that possible?) with the situation, President Trump is demanding that Democrats in Congress agree to fund the construction of a wall along the southern border of the United States. Should they continue to refuse, the president says he is prepared to keep part of the federal government unfunded “for a long time.”

Putting aside the issue of the “shutdown” of the federal government (in reality, only eight percent of the federal government remains unfunded), the potential for presidential use of the National Emergencies Act is 100 percent constitutionally suspect.

First, assuming the president announces his intent to rely on the National Emergencies Act for authority to build the border wall; the building of it would still require about $6 billion and Article I, Section 9 of the Constitution mandates: “No money shall be drawn from the treasury, but in consequence of appropriations made by law.”

Writing in his Commentaries on Blackstone, the eminent Founding Era jurist St. George Tucker explained the reason that the Founding Fathers — including those who drafted and ratified the Constitution — insisted that the executive branch not possess any power over the purse, without the consent of the people’s representatives in Congress.

Tucker’s quote is long, but I assure you it is worth the time to read it all:

All the expenses of government being paid by the people, it is the right of the people, not only, not to be taxed without their own consent, or that of their representatives freely chosen, but also to be actually consulted upon the disposal of the money which they have brought into the treasury; it is therefore stipulated that no money shall be drawn from the treasury, but in consequence of appropriations, previously made by law: and, that the people may have an opportunity of judging not only of the propriety of such appropriations, but of seeing whether their money has been actually expended only, in pursuance of the same; it is further provided, that a regular statement and account of the receipts and expenditures of all public money shall be published from time to time. These provisions form a salutary check, not only upon the extravagance, and profusion, in which the executive department might otherwise indulge itself, and its adherents and dependents; but also against any misappropriation, which a rapacious, ambitious, or otherwise unfaithful executive might be disposed to make. In those governments where the people are taxed by the executive, no such check can be interposed. The prince levies whatever sums he thinks proper; disposes of them as he thinks proper; and would deem it sedition against him and his government, if any account were required of him, in what manner he had disposed of any part of them. Such is the difference between governments, where there is responsibility, and where there is none.

The Rest…HERE

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