Most of the Senators who were outraged at President Obama's abuse of power and who wrapped themselves tightly in the Constitution were deafeningly silent when it came to Trump's abuse of power. There was not a louder critic of Obama's abuse of power than Senator Ted Cruz but he apparently developed a bad case of laryngitis. During the 2016 Republican campaign for the Republican nomination for president, I was tempted to support Senator Cruz and was torn between Cruz and Rubio. I ended up supporting Rubio. I am pleased to see Rubio was one of the twelve who voted for the bill to terminate President Trump's national emergency. I supported the better man. Curz is a strong advocate of the Constitution when it would frustrate a Democrat objective but not so much when constitutionalism would frustrate a Republican agenda. Rubio is principled.
There is an argument to be made that technically President Trump's use of calling a national emergency to get his funding for the wall is legal. It may withstand a constitutional challenge, but I hope it doesn't. It is time we returned to constitutional governance. The Congress have given too much power to the executive branch. The Executive branch has power never envisioned by the founders. Congress has passed vague bills and let the bureaucracy make rules and have given the bureaucracy the right to also adjudicate those rules. Presidents have gradually assumed more power and Congress has let them. President Obama famously ruled by a "phone and a pen." He unilaterally changed laws and got by with it. He greatly expanded the power of the executive. I had hoped that a Republican president would reverse the trend toward the imperial presidency but President Trump is accelerating it. When a future Democrat president declares a national emergency to take money from the military to build wind mills because of the crisis of global warming, Republicans will have no right to complain. That president will be doing the same thing President Trump is doing.
Significant legislative powers were given to the executive branch by the National Emergencies Act of 1976. It gave the President the power to call a national emergency and provided Congress the option of terminating the President's emergency declaration. In the past the power of the president to call a national emergency has been used occasionally, but never as a tool for the president to get by means of declaring a national emergency what he could not get legislatively. It has usually been used to respond to a crisis that could not wait for Congressional action.
Senator Mike Lee proposed a bill to take back from the executive the power to rule by declaring national emergencies. His bill would have said that a national declaration would automatically end after 30 days unless Congress voted affirmatively to extend the emergency. This would still have given a President the power to call a national emergency but would have restored some balance to the balance of powers. His bill did not get any Democrat support. Democrats are no more concerned about constitutional governance than Republicans. Like most Republicans, they are in favor of the Constitution when it advances their agenda and not so much when it would hinder their agenda. I applaud the twelve Republicans who took a principled stand for constitutional governance. Below is a statement from several of the senators explaining their vote.
Senator Mike Lee:
Congress is supposed to be the first among the federal government’s three co-equal branches.For decades, Congress has been giving far too much legislative power to the executive branch. While there was attention on the issue I had hoped the ARTICLE ONE Act could begin to take that power back. Unfortunately, it appears the bill does not have an immediate path forward, so I will be voting to terminate the latest emergency declaration. I hope this legislation will serve as a starting point for future work on this very important issue.Senator Rand Paul:
I stand with President Trump on the need for a border wall and stronger border security, but the Constitution clearly states that money cannot be spent unless Congress has passed a law to do so.Senator Marco Rubio:
We have an emergency at our border, which is why I support the president’s use of forfeiture funds and counter-drug money to build a wall. However, I cannot support moving funds that Congress explicitly appropriated for construction and upgrades of our military bases. This would create a precedent a future president may abuse to jumpstart programs like the Green New Deal, especially given the embrace of socialism we are seeing on the political leftSenator Lamar Alexander:
I support the president on border security. I have urged him to build the 234 miles of border wall he has asked for in the fastest possible way by using $5.7 billion already approved by Congress. But his declaration to take an additional $3.6 billion that Congress has appropriated for military hospitals, barracks and schools is inconsistent with the U.S. Constitution that I swore an oath to support and defend.
Never before has a president asked for funding, Congress has not provided it, and the president then has used the National Emergencies Act of 1976 to spend the money anyway. The problem with this is that after a Revolutionary War against a king, our nation’s founders gave to Congress the power to approve all spending so that the president would not have too much power. This check on the executive is a crucial source of our freedom.
This declaration is a dangerous precedent. Already, Democrat presidential candidates are saying they would declare emergencies to tear down the existing border wall, take away guns, stop oil exports, shut down offshore drilling and other leftwing enterprises—all without the approval of Congress.
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