Today would be a good day for Congress to reassert its constitutional authority; and it has the tools to do it.
This president is not the first to stretch the limits of the Constitution by stepping into Article I territory to expand executive authority. Some have argued that beginning in the latter half of the 20th century, each successive president has encroached further on the legislative branch, sidelining the most directly elected representatives of the people on some of the nation’s most pressing issues — from wars to immigration policy to building roads and bridges. Historian Michael Beschloss documented the erosion of Congress’s war powers in his recent book, “Presidents of War.” Harry S. Truman tried to nationalize the steel industry during the Korea War, until the Supreme Court slapped him back. Members of Ronald Reagan’s administration famously waged wars in Central America without congressional authorization, and funded them by moving money around hidden accounts. Barack Obama avoided congressional authorization in Libya by narrowly defining “hostilities” and facing little challenge from Congress. Congressional Republicans lost their lunch when they thought Obama acted with extra-constitutional authority on behalf of undocumented minors — the “dreamers.”
And here we are.
A recent report by the Brennan Center for Justice highlights that of 59 national emergencies declared since 1979 (until now), only two were domestic — one in the aftermath of the 9/11 attacks and the other concerning swine flu. Most deal with prohibitions on foreign assets and investments. Until now, no national emergency has involved the president using congressionally appropriated funds for unauthorized activities when Congress has expressly said no.
This fight is not just about war powers and emergency declarations or even immigration. It’s a fight to restore the balance of power that has been lost over generations. On a more pedestrian note, Congress would go a long way toward retrieving its “power of the purse” by restoring its role in identifying transportation and infrastructure projects worthy of federal funding. Congress long ago ceded many of its spending decisions on infrastructure to the executive branch. That means that virtually every federal transportation project is decided by the president with a bucket of tax dollars. How does any president know what highway to repair in Kansas or rail project to fund in California? The word “earmark” may have negative connotations, but, handled transparently, it’s just shorthand for elected representatives properly addressing the needs of their constituents.
On environmental stewardship, the executive branch decides what and when to mine on public lands and then reports to Congress after the fact. The current administration is systematically dismantling the Environmental Protection Agency and changing decades of environmental policy using its broad regulatory authority. It’s time for Congress to take back its power.
As to this immediate outrage, the House should pass a resolution to terminate Trump’s declaration, despite facing a steep climb in the Senate and the likelihood of a veto. The veto is not important — what’s important is Congress standing up for its status. It should also press its case in court. While others, from state attorneys general to border ranchers, will also pursue in the courts, Congress has the responsibility to demonstrate harm to its institutional authority and its role as guardian of the nation’s purse.
Already under Speaker Nancy Pelosi’s leadership, House committee chairs have begun reclaiming oversight and demanding executive accountability on the environment, national security, immigration and health care. That’s just the beginning. In the upcoming 2020 appropriations process, Congress should close the lid on pots of money sprinkled throughout the budget that enable any president to “find” funding Congress does not intend. It should examine the 123 statutory powers the Brennan Center has documented that are at the president’s disposal under a national emergency: Some have not been reviewed in decades, and several “national emergencies” that are technically still in effect have either lapsed or Congress has never signed off on them.
This is not good governance. It is time for Congress — House and Senate — to overturn every stone to reclaim its authority and meet its constitutional responsibility.