Article I, Section 9, Clause 7 ​of the U.S. Constitution says: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law” ….which means Congress, and Congress alone, has control of spending policy.

 

In the Federalist Papers: No. 58 (uh oh! we're bringing out the big guns!), James Madison called this the power of the purse, as in “this power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people.”

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In his first term, President Trump tried to circumvent this mandate a thousand different ways, like when he decided to reallocate $44 million from the Federal Emergency Management Agency (FEMA) to bolster COVID-19 unemployment benefits.

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Though, to be fair, so has practically every president before him, as did the one right after him. President Obama violated the separation of powers when he paid for cost-sharing subsidies after the Affordable Care Act passed, while President Biden did when he tried to cancel billions of dollars in student loans – which may have been a sweet gesture if it weren’t straight-up unconstitutional.

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The most obvious abuse of this in President Trump’s first term was, naturally, tied to his beloved border wall. On February 15, 2019, he declared a “national emergency” at the U.S-Mexico border, which gave him more authority to reallocate taxpayer money from other accounts to fund more than 230 miles of barriers along the U.S.-Mexico border. At the risk of sounding like a broken record, yes, this too is blatantly STRAIGHT-UP UNCONSTITUTIONAL. 

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True, this particular one can get easily twisted because the 1976 National Emergencies Act – which significantly weakened Article 1, Section 9, Clause 7 – provides a framework for the president to declare a national emergency but doesn’t define what a national emergency actually is – an oversight that is a recipe for total disaster.

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The Supreme Court has held that “unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” Using that logic, Merriam-Webster defines “emergency” as an unforeseen combination of circumstances or the resulting state that calls for immediate action; applies to a sudden unforeseen situation requiring prompt action to avoid disaster. When you add “national” to the definition, they add:  a state of emergency resulting from a danger or threat of danger to a nation from foreign or domestic sources.

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The key word here is immediate. So, I’ll go out on a limb and say that something is not an official “emergency” if your solution for it will take 5+ years to construct. Are there issues at the border that we need to address? Absolutely. Are they national “emergencies” as defined above? Absolutely not.

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Although Congress can reverse emergency declarations by passing a resolution through both Chambers, this example proves this is not an effective counterbalance. Even if both the House and Senate pass resolutions, presidents can simply veto them. A better way is to pass legislation that automatically terminates an emergency declaration within 30 days unless Congress specifically votes to extend the order. The legislation should also impose strict reporting requirements on the Executive Branch.