I support what President Trump wants to do on border security, but not the way he has been advised to do it.
It is unnecessary and unwise to turn a border crisis into a constitutional crisis about separation of powers when the president already has congressional funding authority to build the 234 miles of border wall that he requested from Congress in January.
There has never been an instance where a president has asked for funding, Congress refused it, and the president then used the National Emergencies Act to justify spending the money anyway.
If President Trump can build a wall when Congress has refused to provide the funding, then the next president can declare a national emergency and tear the wall down or declare a climate change emergency and stop oil exports and offshore drilling. There is no limit to the imagination of what the next leftwing president could do to harm our country with this dangerous precedent.
After the American Revolution against a king, our founders chose not to create a chief executive who could tax the people and spend their money any way he chose. The Constitution gave that responsibility exclusively to a Congress elected by the people, and every United States Senator has sworn an oath to support that Constitution. Separation of those powers is a crucial constitutional imperative that goes to the heart of our freedom.
There is a way, however, that the president can avoid this dangerous precedent completely: he can use the congressional funding authority he already has to build the 234 miles of wall that he asked Congress to approve in January.
Here’s how he could do this: On February 14, Congress passed the Homeland Security Appropriations bill, which provided $1.375 billion to build 55 miles that the president asked for. On February 15, President Trump announced that he would use two additional sources of funds that already had been approved by Congress that could be used to fund the border wall— about $601 million from the Treasury Forfeiture Fund, and up to $2.5 billion from other Department of Defense accounts. The president is authorized to do this because of a provision in law that allows him to transfer up to $4 billion among accounts at the Department of Defense. The Department of Defense budget is over $600 billion.
So by transferring $3.7 billion – instead of $2.5 billion – from Department of Defense accounts to support counter drug activities, the president would be able to build the 234 miles of wall he requested and would not need to declare a national emergency. To be specific, this means the president would use: $1.375 billion from the Homeland Security Appropriations bill; $601 million from the Treasury Forfeiture Fund; and $3.7 billion from Department of Defense accounts to support counter drug activities.
Using funds already approved by Congress avoids the constitutional crisis of separation of powers. It avoids establishing a dangerous precedent, which could be misused by subsequent presidents. It avoids taking money for military construction projects specifically approved by Congress such as military barracks, hospitals or a school at Ft. Campbell. And it also avoids months or years of litigation, which could make it unlikely the full 234 miles are ever built.
It may be a couple of weeks before the Senate votes on a resolution regarding the national emergency declaration, so there is time for the president’s lawyers to take another look and determine whether we can both build the 234 miles of border wall that the president requested while avoiding this dangerous precedent.