Shared from the 3/3/2019 Houston Chronicle eEdition

Border wall is separation of powers issue, not a national emergency

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Donald Trump is not the first president to be frustrated by Congress, or to respond by making aggressive use of the powers of his office.

But he may have transgressed the limits on those powers in declaring a national emergency last month to access the funds he considers necessary to build a wall along the southern border.

The decision was unpopular, in any case. According to a

Quinnipiac poll released

Tuesday, Texans are evenly split on the question of whether to build a wall along the southern border; 48 percent support the idea, and 48 percent do not. But 60 percent of the respondents disapproved of Trump’s use of emergency powers.

In other words, some of the Texans who share Trump’s views on border security are not convinced that the ends justify the means.

And U.S. Rep. Joaquin Castro, D-San Antonio, considers the declaration an unconstitutional power grab, to boot.

He responded to Trump’s announcement by filing a resolution of disapproval, which would block Trump’s declaration from taking effect. It passed the House on Tuesday on a245-182 vote, and will be taken up this month in the Senate — unless Trump withdraws the declaration as some Republicans hope he will.

U.S. Sen. John Cornyn of Texas thinks the resolution might pass the Senate, even though the chamber is controlled by his fellow Republicans.

Three Republican senators had announced by late Friday that they would vote in favor of Castro’s resolution. Assuming that all the Democrats do the same, the result would be atie, which would be broken by Vice President Mike Pence.

And if a fourth Republican breaks ranks, Trump would have a chance to veto the resolution. Such a veto, according to Cornyn, would not likely be overridden in the House.

Cornyn is probably right about that. Only 13 Republican members of the House voted for Castro’s resolution of disapproval in the first place.

And Cornyn, a former Texas attorney general, also might be right that Trump’s declaration passes constitutional muster. That’s ultimately a question for the courts — which, as Cornyn noted, have already been asked to weigh in on the subject.

The emergency declaration, however, is an act of aggression. Although Trump has the power to declare national emergencies, he did so because Congress refused to appropriate the funds he demanded — and the Constitution gives Congress the power of the purse.

Trump clearly believes that he has the power to reprogram funds appropriated by Congress, among other things. And he has a high approval rating among Republicans.

But Trump is a businessman who never held prior elected office. If he’s committed executive overreach in this case, or any other, he probably doesn’t even realize it.

The same could not be said of his predecessor, Barack Obama, who taught constitutional law at the University of Chicago after graduating from Harvard Law School, where he served as the editor of the Harvard Law Review. And Republicans were right to say Obama had aworrisome tendency to deliberately push the limits of his power.

“I’ve got a pen and I’ve got a phone,” said Obama, at the outset of a Cabinet meeting in January 2014.

The Democrats who applauded Obama for his willingness to take bold action in the face of congressional obstruction should have realized that his successor might be tempted to do the same.

But the power of the executive branch has limits, of which most presidents need to be reminded from time to time. Congress, on such occasions, shouldn’t be shy.

And in this case, Castro is right. There’s a humanitarian crisis on the border, as well as a lot of drug trafficking. He and Cornyn are among the leaders in Congress who take such issues seriously. Trump, however, has just been demanding funding.

Congress is under no obligation to do the president’s bidding, or to humor a president who sees the separation of powers as a national emergency. erica.grieder@chron.com

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