President Trump’s determination to build a wall on the border of Mexico has led to a shutdown of many federal agencies. 800,000 workers are laid off, putting at risk many essential governmental programs. The Food and Drug Administration has suspended all inspections of domestic food-processing facilities, creating health hazards for the general public. Farmers are unable to receive subsidies to plant crops. The capacity of airports to conduct checkpoints to ensure safety is under increasing strain. Damage is being done to national parks. Many federal contractors are out of work. In this climate, various shops and businesses have lost their customers.
Although the House of Representatives, now under control of the Democratic Party, has passed a number of bills to reopen executive departments, Senator Mitch McConnell, leader of the Republican-run Senate, has made it clear he will not allow votes on those bills unless President Trump intends to sign them. On Saturday, January 12, the shutdown became the longest in U.S. history. Which political party will be blamed the most for this economic and political damage?
President Trump has claimed he can declare a “national emergency” to build the wall if Congress fails to enact the funds he has requested. Some discretion exists for funds appropriated but not yet obligated, as those in the Defense Department. However, no authority allows the President to take funds from the Pentagon and use them for programs operated by another executive agency, such as the Department of Homeland Security. Such efforts would amount to transferring the constitutional power of the purse from Congress to the President. The violation would be particularly clear if Congress had refused to provide funds for the wall or any type of discretionary authority. Trump would provoke not only litigation but even possible impeachment and removal. His Republican base could decide if this type of presidential initiative is “making America great again.”
Louis Fisher is scholar in residence at The Constitution Project in Washington, DC, and visiting scholar at the William and Mary Law School. From 1970 to 2010 he served in the Library of Congress as senior specialist in separation of powers at Congressional Research Service and specialist in constitutional law at the Law Library. His many books include Constitutional Conflicts between Congress and the President, Sixth Edition, Revised; Presidential War Power, Third Edition, Revised; Military Tribunals and Presidential Power, winner of the Richard E. Neustadt Award; and Supreme Court Expansion of Presidential Power, all from Kansas.