When President Donald Trump declared a national state of emergency last week to get his way on funding for his border wall, legal scholars warned the move dramatically tilted the balance of power in favor of the White House.
In some ways it parallels the hobbling of Congress’ war authority 18 years ago.
A coalition of 16 states filed suit against the White House on Monday. Trump’s move to raid military construction and Treasury funds and redirect them to a southern border wall is unconstitutional, the attorneys general from those states argue.
The nation’s founding document makes it clear that the power to appropriate tax dollars lies with Congress. And the president plans to leverage the emergency declaration to secure funding for a project that Congress would not vote to authorize.
The end run around Congress, weakening the body’s say over domestic affairs, could follow a precedent. It echoes the way that executive power usurped much of Congress’ legislative power to decide when the military goes into action.
In the days of shock that followed the attacks on Sept. 11, 2001, Congress passed a broad resolution that has severely undermined its authority over the military ever since.
Watch: Trump announces national emergency on border, despite likely legal challenge
Declaring war is a duty granted to the legislative branch in Article I of the U.S. Constitution. But the Authorization for Use of Military Force has been leveraged by three presidents to justify intervention in more than a dozen countries with little oversight.
Similarly, Trump’s emergency declaration to redirect billions in funding to a border wall would circumvent powers of Congress also spelled out in Article I — to tax and spend.
It’s too early to tell whether the president’s emergency declaration will have as deep an impact as the AUMF, said Andrew Boyle, counsel with the Brennan Center for Justice, but it has exposed “autocratic tendencies” in Trump.
“There are some parallels, but based off of one attempt by President Trump to circumvent the power of the purse, we can’t really say we’re at the same point regarding the erosion of congressional powers,” said Boyle, who is an expert with the group’s liberty and national security program. “This whole episode has exposed that there aren’t enough hard and fast restraints on presidential power.”
California Democrat Barbara Lee was the only member of Congress to vote against the AUMF in 2001 and has introduced a bill to revoke it. The congresswoman condemned the emergency declaration as another “unconstitutional power grab.”
“By declaring a national emergency on the Southern Border, President Trump is attempting to subvert the constitution and undermine the power of a co-equal branch of government. This move by the president is illegitimate and unconstitutional,” Lee said in a statement.
“But even so, the emergency declaration imposes on Congress’ sole appropriations authority and opens the door for other presidents to make the same unconstitutional power grab, just as the 2001 AUMF has allowed presidents to impose on Congress’ constitutional responsibilities on warmaking.”
A bipartisan push to sunset the AUMF has been stymied for years by Republican leadership, but could see more traction now with Democrats in control of the House.
There are some key differences — Democratic leaders issued a quick condemnation of the president’s national emergency declaration, in stark contrast to the nearly unanimous vote that ushered the AUMF into law.
“The president’s actions clearly violate the Congress’ exclusive power of the purse, which our founders enshrined in the Constitution,” Speaker Nancy Pelosi and Senate Minority Leader Charles E. Schumer said in a statement Friday. “Congress cannot let the president shred the Constitution.”
Even some Republicans have criticized Trump’s declaration, though few in the president’s party denounced outright the move to reappropriate funding without their votes.
Sen. Lamar Alexander, chairman of the Senate Appropriations subcommittee that oversees the budget for the Army Corps of Engineers, called the emergency declaration “inconsistent with the U.S. Constitution.”
“After the American Revolution against a king, our founders chose not to create a chief executive with the power to tax the people and spend their money any way he chooses,” Alexander said in a statement.
Still, experts and Democratic lawmakers warn that without an aggressive opposition, the president’s announcement Friday could portend a dangerously lopsided government.“Now we have a president usurping the power of Congress to appropriate money. It follows along in the very same vein of appropriative power, and Congress becoming the puppet of the president,” said Rep. John Garamendi, who has introduced a bill to repeal the 2001 AUMF.
“We cannot have an imperial president,” the California Democrat said. “Congress must regain its constitutional power so that the balance of power between the three branches of government is renewed.”