Congress refuses to enact legislation containing the nearly $6 billion that Donald Trump is demanding for an unnecessary wall on the southern US border. In response, Trump is considering whether to declare a national emergency, take money Congress has appropriated for other purposes, and divert it to build his wall. But under US law, the president cannot usurp the spending power the Constitution grants only to Congress.
Desperate to appease his right-wing base and Fox News pundits, Trump backed off his commitment to sign a bill that would have reopened the government that has been shuttered for 20 days. Although Congress unanimously supported that bill, Trump is stubbornly holding out for money to build his wall, continuing to hold the American people hostage. One quarter of the federal workforce has not been paid, airline safety is imperiled, the Food and Drug Administration is postponing food safety inspections and national parks are being desecrated while Trump plays wall politics.
The Youngstown Test for Presidential Power
Trump would be on shaky ground if he were to declare a national emergency and divert funds to build his wall. During the Korean War, President Harry Truman invoked national security to seize the steel mills in order to avoid a union strike that would have shut them down. Truman claimed authority to maintain steel production in support of the war effort. But the Supreme Court ruled that Truman had overstepped his authority. In Youngstown Sheet & Tube Co. v. Sawyer, the high court held that the seizure was not supported by the Constitution or any US law.
Justice William O. Douglas wrote in his concurring opinion that the president cannot usurp Congress’s spending power to approve money to pay for the taking of the steel mill’s private property.
The three-pronged test set forth in Justice Robert Jackson’s concurring opinion (paraphrased in italics below with quotes from Jackson) is the premier framework for analyzing the limits of presidential…