As Interpreted By Donald Trump, The National Emergencies Act Is Unconstitutional

Under Art. I, Sec. 9, the President cannot legally spend any Gov’t money except pursuant to an authorization passed by Congress

DavidGrace
Feb 21 · 5 min read

By David Grace (www.DavidGraceAuthor.com)

The first three articles of the Constitution, respectively, describe the powers of Congress, the President and the Judiciary.

Let’s take a look at the powers that the Constitution gives to Congress and to the President.

— — — — — — — — — — — — — — — — — — —

The Powers of Congress

Article I

Section 1. All legislative powers herein granted shall be vested in a Congress of the United States

. . .

Section 7. All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills.

Section 8. The Congress shall have power

to lay and collect taxes, duties, imposts and excises,

to pay the debts and provide for the common defense and general welfare of the United States;

. . .

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

Section 9.

. . .

No money shall be drawn from the treasury, but in consequence of appropriations made by law.

The Powers Of The President

Article II

Section 1. The executive power shall be vested in a President of the United States of America

Section 2. The President shall be commander in chief of the Army and Navy of the United States

He shall have power, by and with the advice and consent of the Senate, to make treaties . . . and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States,

— — — — — — — — — — — — — — — — — — — — — —

That’s all the power the Constitution gives to the President. That’s it.

The Constitution Gives Congress, Not The President, Primary Power

Under the Constitution, the Congress makes all laws, appropriates all money, levies all taxes, and does everything Congress deems necessary for common defense and the general welfare of the United States, and Congress, not the President, possesses all other powers vested by this Constitution in the government of the United States. (Article I, Section 8)

The government of the United States may not spend any money except to the extent that the money has first been legally appropriated by Congress. (Article I, Section 9)

That means that the President cannot legally spend any government money except pursuant to an authorization passed by Congress.

Congress Cannot Change The Constitution With A Simple Law

Article V governs amendments to the Constitution which must be approved by three-fourths of the states.

On its own, Congress cannot change the Constitution.

Congress Cannot Voluntarily Give Its Power To The President

Congress could not pass a valid law giving away any of its constitutionally-granted powers to the President even if it wanted to.

That means that Congress cannot pass a valid law saying that the President can make laws, appropriate money, or spend money that had not first been appropriated by Congress.

The President Cannot Spend Money Appropriated For One Thing On Another Thing

If Congress passed a law appropriating $1 billion dollars for, say, flood relief, it would be unconstitutional for the President to instead spend that money to buy military equipment, because money can only be spent “in consequence of appropriations made by law” (Article I, Section 9) and the Constitution grants to Congress, not the President, the power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” (Article I, Section 8)

Congress Cannot Give The President A Slush Fund

Congress cannot constitutionally give the President the authority to spend money from a slush fund because “All legislative powers herein granted shall be vested in a Congress” (Article I, Section 1) and “the Congress shall have power . . . to lay and collect taxes, duties, imposts and excises . . . to pay the debts and provide for the common defense and general welfare of the United States” (Article I, Section 8)

Any law that said that the President could take money appropriated by Congress for one use and spend it for some other purpose chosen by the President in his/her discretion would be, on its face, unconstitutional as a violation of Article I’s grant of all legislative power solely to Congress.

Any law that might seek to appropriate money for a slush fund that could be spent by the President in his/her discretion would similarly be unconstitutional as an attempt to grant powers to the President that Article I of the Constitution vests solely in Congress.

If Trump Is Right About What He Is Authorized To Do Under The National Emergencies Act, Then That Law Is Unconstitutional

To the extent that the National Emergencies Act purports to give the President the power to take money appropriated by Congress for the construction of military bases or take money that the Treasury obtained from drug seizures and spend it on a wall or any other project the President might pick, the Act is unconstitutional because it would purport to give the President the right to violate Article I, Section 9’s requirement that “No money shall be drawn from the treasury, but in consequence of appropriations made by law” and Section 8’s provision that Congress, not the President, shall have the power “to make all laws.”

The Difference Between A Dictatorship And A Constitutional Government

In a monarchy or a dictatorship, the King makes the laws and spends the money.

Under our constitutional system, Congress, and only Congress, makes the laws, and the Executive branch is only empowered to implement those laws in conformance with how Congress has drafted them.

No matter how important some project may be, it cannot be funded or completed except to the extent that the Congress has passed a law authorizing that spending.

No matter how important some project may be, if the Congress has refused to fund that project, government money cannot constitutionally be spent on it.

The glaring fact that the current occupant of the White House has egregiously failed to understand is that he is a President, not a King.

– David Grace (www.DavidGraceAuthor.com)

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DavidGrace

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Graduate of Stanford University & U.C. Berkeley Law School. Author of 17 novels and over 200 Medium columns on Economics, Politics, Law, Humor & Satire.

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