Checks and Balances Erode as Trump Flexes Power of the Purse

The Trump administration says it lawfully tapped Pentagon funds to build the border wall.

Photo: carlos barria/Reuters

Days before President Trump signed executive actions Saturday to defer payroll taxes and resume enhanced unemployment benefits, House Speaker Nancy Pelosi (D., Calif.) warned he was on the wrong side of the constitution: “The power of the purse begins in the House.”

That, of course, is what we’re taught in high school civics. But lately, it doesn’t reflect reality. Presidents of both parties have been siphoning power from Congress for decades, and Mr. Trump has been especially aggressive in the fiscal sphere. Indeed, the erosion of fiscal checks and balances might be one of his least appreciated legacies.

More important than the past weekend’s executive measures was the Supreme Court’s vote a week earlier, 5-4, allowing construction to continue on Mr. Trump’s wall with Mexico while litigation over its legality proceeds. Like his latest executive actions, Mr. Trump invoked a national emergency to fund the wall without congressional approval.

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The administration says it lawfully tapped Pentagon funds to build the wall, and courts should not second-guess the president on national security. By contrast, its opponents see a threat to a keystone of the Constitution—the separation of powers. Should the president prevail, “Congress would be reduced to an advisory role, no longer able to function as the crucible of political debate, negotiation, and compromise in our constitutional system,” more than 100 former lawmakers of both parties argued in a court filing last month.

While the nation’s future might not turn on this case, the principle at stake nonetheless goes back to the origins of American governance. In 17th century England, King Charles I’s fiscal depredations, from defaulting on his debts to raising revenue without Parliament’s consent, helped precipitate a civil war. The struggle between Parliament and Crown finally ended with the Glorious Revolution in 1688. As a condition of assuming the throne, King William III agreed to several institutional constraints on his power, including Parliamentary supremacy on expenditure and taxation. By outlawing the arbitrary confiscation of private property, this paved the way for England’s economic rise, scholars Douglass North and Barry Weingast argue.

A century later, the same principle was enshrined in Article 1, Section 9 of the U.S. Constitution: “No money shall be drawn from the Treasury but in consequence of appropriations made by law.” In the Federalist Papers, James Madison described the “power over the purse…as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people.”

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Yet over the succeeding centuries, Congress had little choice but to cede some control to the president. The expansion of the federal government has put the president in charge of a sprawling administrative state with influence over nearly every aspect of American life. Much of the budget now goes toward Social Security, Medicare and other programs that are funded permanently rather than through annual appropriations. Moreover, during wars and emergencies legislators proved reluctant to second-guess the president, and courts were equally reluctant to intervene.

A pushback came in 2014 when the Republican-led U.S. House of Representatives sued the Obama administration for paying Affordable Care Act subsidies out of unappropriated funds. A Republican-appointed judge ruled in its favor, though the case was settled before reaching the Supreme Court.

In this case, the parties have changed sides. In early 2019, Democrats, who had just won the House in part by opposing Mr. Trump’s border policies, refused Mr. Trump’s request for wall funds. The resulting impasse caused the government to shut down, which only ended when Mr. Trump signed a bill that excluded the funds. Madison, it appeared, had prevailed over the imperial presidency.

Mr. Trump invoked a national emergency to fund the wall without congressional approval.

Photo: paul ratje/Agence France-Presse/Getty Images

Mr. Trump quickly declared a national emergency and transferred $2.5 billion out of the Pentagon’s budget, even though the law only permitted such transfers for “unforeseen military requirements…and in no case where the item for which funds are requested has been denied by the Congress.” He has since transferred another $7.4 billion from various Pentagon accounts. Both the Democratic-led House and Republican-controlled Senate voted to terminate Mr. Trump’s emergency declaration, but couldn’t muster the two-thirds majorities needed to override the president’s veto.

The House, Democratic-led states, border communities, the Sierra Club and the American Civil Liberties Union have all sued to stop the wall. Dror Ladin, who is arguing the case for the ACLU, said, “It’s hard to think of a lot of cases that have such tremendous rule of law implications the way this one does.”

Some conservatives find Democrats’ newfound interest in curbing presidential fiscal overreach hypocritical: “These same Democrats had no objection during the Obama administration when an entire war [in Libya] was funded without their approval,” said Jonathan Turley, a law professor at George Washington University who represented the House in its lawsuit against the Obama administration.

Judicial decisions also have a partisan hue. A Trump-appointed lower-court judge ruled against the House, while two appeals courts dominated by Democratic appointees have ruled against the administration, though on different questions.

The Supreme Court has thus far also decided along ideological lines with its five Republican-appointed justices twice refusing to halt construction. The practical effect is that by the time it does rule, possibly next year, much of the wall will be built.

The longer-lasting effect is that if the court ultimately rules in favor of the administration—as its refusal to halt construction suggests it is inclined to do—it will have given a road map to future presidents—Democratic or Republican—searching for a way around Congress’s power of the purse.

Write to Greg Ip at [email protected]

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