• Up against the Wall: Congressional Retention of the Spending Power in Times of "Emergency"

    Linda Sheryl Greene
    MSU Law Faculty Repository
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    President Trump's border wall has evolved from an ambitious campaign promise into a real opportunity to explore presidential versus Congressional authority to determine how the president spends Congressionally appropriatedfu nds. The president's arguments that he has the power to build the wall under either the National Emergencies Act or the funding provisions of10 U. S.C. § 9705 or 10 U. S.C. § 284 lack merit-the cited nonemergency-tied statutes do not provide funding for the wall. The former authorizes the utilization of Treasury Forfeiture funds tied to specific law enforcement activities but excludes the ambitious and broad construction project the president proposed; the latter authorizes support only for counterdrug activities. The wall constitutes an unprecedented appropriation for a project without mooring in statutory language permitting only unspecified minor military construction projects. Nor does The National Emergencies Act authorize the president to use Congressionally appropriated funds to build a wall that congress has expressly declined to fund. Congress enacted the National Emergencies Act after Executive abuses during the Vietnam War and to curb-not encourage-presidential usurpation of Congressional spending power based on emergency rationales. Although the National Emergencies Act imposes scant substantive and procedural limitations on a president's ability to declare a national emergency and divert funds to address such an emergency, the Act does not allow the president to manufacture a basis for such a declaration where none exists. Even so, the chronology of events leading up to the emergency declaration demonstrates that the president's invocation of an emergency is a ruse.
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    4 weeks ago
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