By Ivan Eland, Independent Institute
After the Donald Trump presidency, some bipartisan motivation exists to restore some of the guardrails and norms of the executive branch that eroded during that time. However, the Trump administration was only the most recent episode of the usurpation by the executive of the powers of other branches of government in the founders’ original checks and balances system. Many of the proposed reforms are laudable but they need to go further to constrain what has recently been a rogue presidency and to restore the people’s houses of Congress to their original position, at the nation’s founding, as the “first-among-equals” branch of government.
One of the most important worthwhile ideas is curbing the president’s power to declare a national emergency, thereby using special standby powers. For example, Trump declared a questionable national emergency merely to transfer Department of Defense funds to spend more on the border wall than Congress had approved and he himself had signed into law. This directly violated one of the core provisions of the Constitution that “No money shall be drawn from the Treasury, but in consequence of appropriations made by law.” Even worse, despite Congress passing laws permitting national emergencies and presidents taking advantage of them, the Constitution does say anything that would permit such draconian states of emergency to be declared by any branch.
In fact, the founders, having just fought the British monarch for independence from his excessive power, would have been leery of any such executive power. Thus, the Constitution only authorizes Congress—not the president, as Ulysses S. Grant and George W. Bush believed—to temporarily suspend the writ of habeas corpus (the right of a person to challenge detention by the government) in cases of invasion or rebellion. Thus, a president declaring a sketchy national emergency merely to fund a pet project is way beyond the pale—and at least nineteen Republicans at one time seemed to agree. Related to this episode is a long-overdue reform proposal to restrict the ability of the executive to spend, or secretly stop, funds contrary to Congressional appropriations. The president’s job is to execute laws passed by Congress, not evade or override them on a whim.