The Washington PostDemocracy Dies in Darkness

Opinion Trump snatched Congress’s purse for his border wall. The courts must hand it back.

A section of the U.S.-Mexico border wall outside Douglas, Ariz., as photographed in January.
A section of the U.S.-Mexico border wall outside Douglas, Ariz., as photographed in January. (Carolyn Van Houten/The Washington Post)
Placeholder while article actions load

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 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, Mr. 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 suit makes 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 B. 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 the House 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 Mr. Trump’s wall. Judge 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 the House cause to contest Mr. 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 the House is suing could apply to an incalculable and unpredictable number of disputes in future administrations, Republican or Democratic. Would Republicans like to contemplate a Democrat in the White House who, citing Mr. 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 climate-change research? We can well imagine GOP’s howls of constitutional offense — and they would be justified.

House Democrats have been consistently opposed to Mr. Trump’s wall, and they have opposed funding it, as is their right. Mr. 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.”

Read more:

George F. Will: Congress’s power is in its purse. And Trump has snatched it.

The Post’s View: It’s hard to say what’s worse about Trump’s wall: The incompetence or the corruption

The Post’s View: Trump treats Congress with contempt on the wall. And Congress rolls over.

The Post’s View: Trump’s border wall wouldn’t stop most illegal immigration or drugs. So what is it for?

The Trump’s View: The collateral damage for Trump’s wall is now clear

Loading...