Faced with constitutional challenges to the president’s initiative, the judicial branch has run for cover in a manner that strains credibility.
All eyes are on impeachment this week. But President Donald Trump’s border wall is churning up a second constitutional crisis all by itself on the sidelines.
More often, the record shows a fresh crop of judges nominated by Trump has stepped in for the president, either to stay injunctions or deny standing to those challenging his unprecedented use of emergency powers to get around Congress. Story continuesThe request from the Department of Homeland Security was framed not in dollars but in miles of construction over six sections of the border. So the estimated cost of meeting this goal is not yet public. But the White House is relying on diverting more Pentagon funds to wall construction than it did in 2019.
Watching with astonishment is Louis Fisher, a constitutional scholar and veteran senior specialist on separation of power issues for the Congressional Research Service."I can't imagine anything more dangerous than a president who says he can take funds appropriated for other purposes and shift them to build the wall along the southern border, claiming it is necessary to satisfy a campaign pledge,” Fisher said. “I'm surprised that hasn't been brought into the impeachment process.
The administration appealed to the 5th Circuit for a stay on Briones’ injunction. What it got was even more. “The most pernicious aspect of the Fifth Circuit's ruling is stating that the Constitution denies these plaintiffs standing to enforce statutory limits on executive branch spending without any hint that the Constitution permits anyone else to enforce such limits,” Bernstein said. “The Fifth Circuit's license to Presidents to violate statutory limits on spending puts separation of powers in grave danger.
Such vetoes had been a convenient tool for Congress to strike a balance between two goals: giving executive agencies more discretion to administer laws while also retaining some authority for lawmakers to step back in when they felt it was needed. But in INS v. Chadha, the justices ruled that the practice violated the Constitution since the legislation was never presented to the executive branch for the president’s signature as required by the separation of powers.
“Had Chadha come out the other way, these issues would have been fought over between Congress and the president,” Pildes said. “And if the Congress were opposed to these particular uses of emergency powers and voted them, then the courts wouldn’t be in the picture at all potentially.”
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