Wall Emergency, Even If Legal Under Existing Law, Violates the Separation of Powers

Our Constitution divides federal power into three branches of government: the legislative, the executive, and the judicial. One of the powers given exclusively to the legislative branch (Congress) is to spend money, or to appropriate money for the executive branch to spend, in enforcing the law (which is the president ’s power and indeed duty). Specifically, Article I, Section 9 (the Appropriations Clause) says that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” And of course, the purposes for which Congress can exercise this “power of the purse” are enume rated in Article I, Section 8, which is why we have legal battles over, for example, whether some federal law fits into the power to regulate interstate commerce (aka the Commerce Clause). So the idea that the executive branch can’t exercise legislative power means that it can neither spend money that hasn’t been appropriated nor create new programs. Now, congressional refusals to appropriate that money or create those federal programs don ’t give the president more power, even if he thinks it’s really important. This is what got President Obama in trouble: DACA and DAPA, for example, which I generally support as a matter of policy, are new programs that create new immigration statuses—so these executive actions have no constitu tional basis, no matter what kind of pen or phone he used to enact them. Stated another way, a presidential failure to get the d...

Source: Cato-at-liberty - February 15, 2019 Category: American Health Authors: Ilya Shapiro Source Type: blogs