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Assault on America, Day 64: Presidents need a congressional check, not an abusive impediment

Paul on National Emergency
“Do you want to have this conversation? … Do you really want to have this conversation???”


Movie buffs may recognize this brief exchange from the somewhat raunchy but hilarious comedy “Forgetting Sarah Marshall,” as a similar line of questioning is echoing through the vaunted marble halls of Congress these days. Republican senators are debating whether to support a Democrat resolution to officially disapprove of President Donald Trump’s national emergency declaration pertaining to the U.S. border with Mexico.

The “conversation” at hand is whether Trump -- or any president -- has the constitutional or statutory authority to divert undesignated funds otherwise appropriated to an executive department (in this case military resources) to move forward on an executive and national security priority of the highest order (the border wall).

Democrats already weighed-in with their opinion -- and of course the answer was “no.” When it was their guy behind the Oval Office’s Resolute Desk, party members used every justification in existence to contend Barack Obama had the standing to use his “pen and phone” at will -- but now that it’s Trump in the position Democrats have a decidedly different view of presidential potentials.

Most Republicans back Trump’s emergency declaration on its face, accepting there’s a true national crisis at the border demanding attention and action regardless of the politics game-playing Democrats’ endeavors to stymie the president by starving him of money for a barrier. A few GOPers are against it, however, maintaining they fear a future Democrat president will abuse the precedent and privilege to inflict massive harm. They’re right to be worried.

And still others object on principle. Senator Rand Paul is one of them. Paul wrote at Fox News, “I, and many of my fellow members, called out President Obama for abusing executive authority. President Obama famously said that if Congress wouldn’t do what he wanted, he had his pen and his phone ready.  That was wrong.  Many of those voting now spent a good portion of their campaigns running ads against these words and actions of President Obama.  They will and should be condemned for hypocrisy if they vote to allow this because they want the policy or want to stand with the president in a partisan fight...

“I must vote how my principles dictate. My oath is to the Constitution, not to any man or political party. I stand with the president often, and I do so with a loud voice. Today, I think he’s wrong, not on policy, but in seeking to expand the powers of the presidency beyond their constitutional limits. I understand his frustration. Dealing with Congress can be pretty difficult sometimes. But Congress appropriates money, and his only constitutional recourse, if he does not like the amount they appropriate, is to veto the bill.

“I look forward to working for a constitutional way to deal with our border security issue.”

Technically speaking, Paul is correct, and given his well-established history as one of the Constitution’s staunchest defenders, his opinion is respected. The Kentucky senator is one of a token few congressmen and senators who regularly disdain political considerations to do what is proper. Paul’s fiercely advocated pro-liberty stances earned him enormous popularity in his home state, the respect of his colleagues and the unmitigated animosity of the rabid left -- one member of which assaulted him in his front yard while cutting his lawn.

For Paul it’s family tradition to vote his conscience. Father Ron Paul spent years in the House playing the constitutional contrarian role, sometimes being the lone “no” vote on measures that otherwise would’ve passed unanimously. Ron Paul became known as “Dr. No” because he wouldn’t budge on his beliefs.

Rand is the same way. In most ways it’s a good thing. Paul’s even conducted a couple rare talking filibusters to drive home greater points, knowing his lone mission had little to no chance of succeeding yet still he put himself before the public to highlight the issues of drone surveillance and deficit spending. At times Paul’s causes drew the animosity of GOP leaders, which again, is commendable.

But here Paul is wrong.

Why? Trump clearly has both the statutory and constitutional authority to declare a national emergency at the border. Sean Davis wrote at The Federalist, “Trump is operating within the bounds of a clearly defined and narrow delegation of authority within the realm of appropriations law. He has not conjured funding from thin air (the military construction and Army Corps funding has already been appropriated), nor is he using funds for purposes explicitly prohibited by Congress (to the contrary, Congress explicitly authorized the construction of a border wall).

“A president who attempted to unilaterally levy taxes or confiscate lawfully owned property pursuant to some declaration would not be operating within the law, and Trump’s use of limited appropriations transfer authority will have no legal bearing on potential attempts by future presidents to exercise presidential authority outside the bounds of the law.”

Davis’s excellently reasoned article supplies the statutory specifics of presidential authority to declare -- and pay for -- national emergency contingencies, a broad power past presidents, including Obama, used to realize policy goals. Unlike Obama’s actions, however, Trump’s move to secure the border wasn’t some sort of wild stretch to fulfill one of his top campaign promises and there really isn’t a “precedent” because circumstances reveal there’s a real problem down there.

And because Congress already appropriated the funds there’s no infringing on the legislative branch’s power of the purse either. Paul argues that the will of Congress was revealed through the recently passed budget bill the president signed -- and if Trump didn’t feel there was enough in it for national security, he shouldn’t have affixed his signature to the document.

It sounds good in theory, and again, Paul’s contentions are well intentioned and certainly debatable. Unlike several of his GOP colleagues he’s not weighing the potential political harm from appearing to give Trump what he’s asking for. Democrats are mercilessly hammering the contingent of establishment RINOs until they capitulate. It’s ugly.

But there’s also a good argument that the will of Congress isn’t being upheld today because Democrats, through the filibuster tradition, have imposed a tyranny of the minority on practically all legislation traveling through the system. Heck, Democrats even filibustered the Born-Alive Abortion Survivors Protection Act which simply mandated babies who survive an abortion procedure be given medical care.

The measure would’ve passed with a simple majority vote had Democrats agreed to end debate (cloture)… but they didn’t and the matter “died.”

The president enjoys wide latitude to protect the citizens and territory of the United States as well as call up the military when he deems an external crisis threatens the country. In essence, that’s what Trump’s done here. There isn’t anything more basic than a commander in chief’s employing military resources to defend against invasions…even non-shooting ones.

Lastly, at its core, this Democrat action is wholly symbolic. Trump’s already stated he’ll veto the resolution, which would then require Congress to muster two-thirds of members and senators to override it. That’s just not going to happen.

Paul doesn’t need to use this as a “hill to die on” because the national emergency declaration will stay in effect until the courts review it. Undoubtedly some liberal federal district judge will issue a stay… and eventually the Supreme Court will rule on the matter. Paul predicts Trump’s judges will agree with him on the constitutional merits.

Not likely given the statutory history involved here.

Some would argue it’s about time we had a national conversation on executive powers, but the Democrats’ resolution blocking Trump’s emergency declaration isn’t the right occasion. Senator Rand Paul isn’t wrong very often, but this is one position he’d be wise to reconsider.

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