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John Faso: Emergency At The Border

George Washington issued a presidential proclamation calling out the militia to put down a taxpayer rebellion in Pennsylvania.  Shortly after assuming office in 1861, Abraham Lincoln declared a naval blockade of Southern ports. Then, Lincoln issued an executive order increasing the size of the army and navy, and over 40,000 volunteers were given three-year enlistments.

President Franklin Roosevelt, upon taking office in 1933, ordered a “bank holiday” which effectively shut down the banking system.

None of the aforementioned Presidential orders were based on an explicit statutory or constitutional authority; but each of these actions were later supported by specific congressional approval, or in FDR’s case, a retroactive law authorizing the closure of the banks.

Institutional tension between executive and legislative branches has existed since the founding of the Nation.  Most scholars agree that the Executive Branch has gradually encroached upon the prerogatives of the Legislative Branch, particularly in the area of foreign policy and trade matters. 

President Trump’s recent assertion of authority under the 1976 Emergencies Act to reallocate defense Department funding towards construction of additional border walls on the southern border with Mexico has reignited this institutional tension.

The House has already voted, pursuant to the Emergencies Act, to overturn the presidential declaration.  The Senate is expected to follow suit, but it is highly doubtful that either house will override the expected veto from Mr. Trump. While it isn’t a clear cut case, my belief is that the Supreme Court, when it gets the matter, will side with the legislative branch.

Virtually all of the three dozen or so presidential emergencies declared since 1976 involved imposing sanctions on terror groups or restrictions on trade with certain nations.  None of these matters, while individually important, ever were ever challenged in Congress.

However, funding of the Trump border wall was the subject of intense political wrangling. The congress ultimately adopted a spending bill with $1.4 billion for additional border barriers, significantly below the president’s request. 

President Trump’s public comments upon signing the spending legislation also undermined his legal position, surely to the private chagrin of government lawyers tasked with defending the executive order in court.  He basically said that “regardless of what Congress has done, I’m going to act anyway.”  This will certainly be prominently mentioned in arguments made by the legislative branch when the matter gets to the high court.

Mr. Trump’s assertion of his ability to act echoes the decision of President Obama to unilaterally grant legal status to the DACA population, minors brought to the country illegally by their parents.  When the DACA case ultimately gets to the Supreme Court, I believe Mr. Obama’s decision is likely to be overturned on the basis that such action usurped the proper role of Congress over immigration policy. The failure of Congress to act on an issue, does not under our Constitution, confer upon the President the power to act unilaterally.

Despite the legal arguments, there does exist a genuine crisis at the southern border.  Recently, federal authorities reported that in February, over 76,000 migrants either crossed the border illegally or presented themselves at the border seeking asylum.  At this rate close to 1 million migrants will enter the U.S. over the next year, overwhelming our legal and border security processes at the border.  

Rather than fighting in the Courts, the national interest would be better served if Mr. Trump and Congressional leaders return to the table to negotiate a realistic set of measures to enhance border security, speed processing of asylum cases and deal with the humanitarian crisis happening before our eyes. Compromise is the way to proceed.

Former Representative John Faso of Kinderhook represented New York's 19th House district in the 115th Congress.

The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.

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