by CHQ Staff
Our liberty-minded friend Senator Rand Paul has apparently come out in support of a resolution blocking President Trump’s use of a national emergency declaration to fund the much-needed security wall on the U.S.-Mexico border.
According to multiple media reports, Sen. Paul said in a speech Saturday that he “can’t vote to give extra-Constitutional powers to the president.”
According to the Bowling Green [Kentucky] Daily News, Paul told attendees of the Southern Kentucky Lincoln Day Dinner, “I can’t vote to give the president the power to spend money that hasn’t been appropriated by Congress.” Paul also said, “We may want more money for border security, but Congress didn’t authorize it. If we take away those checks and balances, it’s a dangerous thing.”
Republican Senators Lisa Murkowski, of Alaska, Susan Collins, of Maine, and Thom Tillis, of North Carolina, have also signaled opposition to President Trump’s declaration of a national emergency at the southern border, leaving Senate passage of the Democrats’ resolution of disapproval a strong possibility.
The problem we have with Senator Paul’s argument against the declaration of a national emergency at our southern border is two-fold.
First, it rests upon the faulty constitutional premise that the funds the President plans to use haven’t been appropriated for national security purposes, and second, it overlooks the constitutional duty imposed upon the President to defend the borders and sovereignty of the United States.
We could add that the emergency is one created by congressional dereliction of its duty to defend the borders and sovereignty of the United States, but it would take another column, or more correctly book, to recapitulate the congressional dereliction that imposed upon President Trump the necessity of declaring the border emergency.
Senator Paul seems stuck on the Constitution’s Article I, Section 9, Clause 7 language that states, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law…” with those opposing executive action to build the Wall arguing that after a lengthy voyage through the courts, the Supreme Court would likely find that the President lacked the constitutional authority to build the Wall without a congressional appropriation for that purpose.
However, it is our view that President’s inherent power under Article II gives him the authority to reprogram funds in exigent circumstances. As Kate Stith, Lafayette S. Foster Professor of Law, Yale Law School wrote:
…despite the categorical imperative of the Appropriations Clause, it would seem that Congress itself is constitutionally obligated to provide funding necessary for the President to undertake Executive powers specifically granted in Article II—to receive ambassadors, act as Commander in Chief, negotiate treaties, grant pardons, and the like. If Congress fails to provide necessary funds, then the grants of power to the President are themselves for naught. Scholars disagree on the extent to which Congress may use appropriations limitations to control the President’s exercise of discretion in carrying out his or her duty to “execute the law,” especially in the area of national security—though all agree that Congress may not, under the guise of exercising its “power of the purse,” interfere with indispensable executive (or judicial) functions. Nor may the President frustrate congressional mandates by refusing to spend directed funds. (Emphasis ours)
As Professor Stith notes in her article, Congress has long codified this object requirement, requiring that “[a]ppropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law.” The latter phrase refers primarily to a variety of statutes that give executive agencies limited authority to “reprogram” line items within an appropriation under certain conditions. This practice does not contravene the Appropriations Clause, because reprogramming authority effectively expands the objects for which the appropriations are made.
What’s more, we think Senator Paul came to his conclusion without reading the entire Constitution, otherwise he would recognize that Article IV, Section 4 of the Constitution provides that:
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence. (Emphasis ours.)
According to the Texas Department of Public Safety, based on Department of Homeland Security status indicators, over 279,000 criminal aliens have been booked into local Texas jails between June 1, 2011 and January 31, 2019, of which over 189,000 were classified as illegal aliens by DHS.
Between June 1, 2011 and January 31, 2019, these 189,000 illegal aliens were charged with more than 295,000 criminal offenses which included arrests for 539 homicide charges; 32,785 assault charges; 5,737 burglary charges; 37,234 drug charges; 403 kidnapping charges; 15,991 theft charges; 23,701 obstructing police charges; 1,660 robbery charges; 3,473 sexual assault charges; 2,170 sexual offense charges; and 2,976 weapon charges. DPS criminal history records reflect those criminal charges have thus far resulted in over 120,000 convictions including 238 homicide convictions; 13,662 assault convictions; 3,158 burglary convictions; 17,930 drug convictions; 175 kidnapping convictions; 7,100 theft convictions; 11,336 obstructing police convictions; 1,013 robbery convictions; 1,710 sexual assault convictions; 1,153 sexual offense convictions; and 1,282 weapon convictions.
Moreover, more than 369,000 illegal aliens were arrested along the Texas – Mexico border in 2018, if over 1/3 of a million illegal entries into our country isn’t an invasion what is?
Clearly, the President has the constitutional duty and authority to act as Commander-in-Chief, to protect the sovereignty of the United States, the lives and property of its citizens and to ensure that the immigration laws of the United States are carried out faithfully. Ergo reprogramming funds already appropriated for those general purposes would likely, after a lengthy voyage through the courts, pass constitutional muster.
Moreover, the objects requirement does not direct the Executive Branch down to what size nail and what weight hammer the Executive must use to accomplish its constitutional duties. Thus, if the Executive judges that an emergency exists and military construction should occur at the border instead of say, at Ft. Campbell, Kentucky, the Executive has the constitutional responsibility and the statutory authority to reprogram funds to meet that emergency.
We urge CHQ readers and friends to call Senator Rand Paul and other Republican Senators TODAY. The toll-free Capitol Switchboard is (1-866-220-0044) tell them there IS a national emergency on our southern border, and that under Article II and Article IV, Section 4 of the Constitution the President has the authority and duty to declare an emergency on our southern border. Tell them the President was right to use his constitutional authority to declare a national emergency and have the Pentagon build the wall and other needed security enhancements on our southern border. And finally, urge them to vote NO on the Democrat resolution disapproving the President’s Declaration of National Emergency.
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Photo “Rand Paul” by Rand Paul.
