Photo: President Donald Trump at a campaign rally in Phoenix, AZ. Source: Gage Skidmore

By Avram Reisman

On Friday, President Trump declared a national emergency to address the “national security and humanitarian crisis at the border.” Presidents have declared national emergencies over 50 times since the National Emergencies Act was signed into law in 1976, and Trump has already implemented three, but a national emergency has never been used to override the Congressional power of the purse.

As James Madison wrote in Federalist 58, the power of the purse was to be vested in Congress, specifically the House of Representatives, because they were the most direct representatives of the people and, in the British Commonwealth, such a power was used to “reduc[e], as far as it seems to have wished, all the overgrown prerogatives of the other branches of the government.” Madison goes on to say the power of the purse is “the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.” Congressional power over the purse is meant to ensure that no tyrant can overrule the people’s will as represented by Congress. Trump’s use of a national emergency to redirect funds to the construction of a border wall because Congress was not willing to appropriate funds for it is, therefore, a direct challenge to one of the most fundamental American democratic institutions, the separation of powers.

But why does maintaining institutions matter for democracy? Political Scientist Samuel Huntington famously argued that strong institutions ensure stable political order no matter what kind of broader regime is in place. When institutions cannot manage and address the changing demands and needs of society, political decay results wherein the regime becomes less legitimate and less stable and collapse/transition to a new paradigm or regime becomes inevitable. Stable democracy relies on strong democratic institutions defined by adaptability to a changing society and autonomy from changing power between factions in society.

One could argue that separation of powers is not adapting to the changing demands or values of society and so the adaptation of the executive branch is necessary and appropriate. In a sense, the former condition is true. Congress has been moribund for much of the last three decades. As a result, the executive branch has adopted traditionally legislative powers such as increasingly criticizing legislation through “signing statements” and using Federal regulation to act as executive legislator. Contrary to popular belief, the greater use of executive orders goes back to Theodore Roosevelt, who issued a total of 1,081 executive orders, 10 times more than his predecessor; (Obama’s 276 looks moderate in comparison). More recently, Congress chose to accept “executive agreements” over enforcing the Senate’s power to ratify treaties and trade agreements. In short, the role of Congress in checking the executive has declined significantly.

Erosion of Congressional effectiveness may be due to the U.S.’s ever more extreme and paralyzing political polarization. It may also be due to the role of money in politics or gerrymandering. It could also be due to ambitious presidents and their successors being unwilling give up powers. Whatever the reason, it is plain that Congress is no longer stepping up to the plate in legislating. Yet this failure is not a good reason to abandon separation of powers, particularly in this instance.

Despite its other problems, Congress has managed to continue funding the government, albeit with stops and starts. There is no good reason for the executive to take over this power, particularly when he had the opportunity to fund a border wall through a regular appropriations process. For President Trump to take the power of the purse away from Congress may be within the letter of the law, but it is certainly not following the spirit of it nor the intention of the founders.

Though Democratic party leaders will challenge the national emergency in the courts, it is hard to say whether these efforts will succeed. It is possible that Chief Justice Roberts will swing the Supreme Court against the declaration, but the partisanship of the Court, which is itself a concerning development outside the scope of this article, means that President Trump will likely have at least 4 votes.

American citizens should all draw from this lesson the danger of Congress abdicating its powers and of eroding democratic institutions more generally. The United States could not have reached this point had Congress not allowed for the presidency to erode the separation of powers. No democracy, not even one as old and as well-consolidated as the United States, can rest on its laurels. For institutions to be effective, they must be able to adapt to a changing society and its demands. Democracy is a continuous project, not a static product, with changing ends. Institutional reform, like that presented in the House Democrats’ H.R. 1, is sorely needed, not only to make the United States more democratic, but to prevent its erosion into tyranny.