Note: this was originally published in The Bulwark, and was written by Checks & Balances member Ed Larson.
The Trump administration’s radical expansion of executive power is beckoning what the Founders called “the very definition of tyranny.”
The Trump administration recently released communications between the Defense Department and the White House about the administration’s freeze of military aid to Ukraine. While President Trump’s supporters claim that the aid was withheld out of a legitimate interest in battling corruption, the documents make clear that by the time the president ordered the hold, the Pentagon had already certified that the Ukrainian military had taken sufficient anti-corruption steps. Furthermore, Defense Department experts warned that unilaterally withholding the aid might be illegal. But that’s not the worst part.
The worst part is that the damning communications were uncovered by a Freedom of Information Act request by Just Security, rather than delivered to the House of Representatives in response to its subpoenas. While corruption in the executive branch is a story as old as the republic, never before has an administration categorically refused to provide witnesses or documents to a House impeachment inquiry.
There’s no shortage of blame to go around for this manifest constitutional failure, starting with President Trump and extending to White House Counsel Pat Cipollone, acting White House chief of staff Mick Mulvaney, and the cabinet secretaries who meekly refuse to testify.
But the blame doesn’t end there, because this isn’t the first unprecedented and unjustified expansion of executive power from this administration. For over a month, from December 22, 2018 to January 25, 2019, the federal government experienced a partial shutdown because of an impasse between Congress and the president over funds for building a wall on the nation’s southern border.
Prior to the shutdown, the Republican-controlled Senate unanimously passed legislation that, if enacted, would have funded government operations through the end of the fiscal year. But because the bill did not include money for his wall, Trump opposed it. Under pressure from the president, lame-duck Republican House leaders refused to schedule the bill for a vote, passing to Speaker-elect Nancy Pelosi and her fellow House Democrats in the new Congress. Meanwhile, the partial shutdown took hold three days before Christmas, when prior stopgap authorizations expired. “I am proud to shut down the government for border security,” Trump told Pelosi and Senate Democratic leader Chuck Schumer during a testy Oval Office meeting.
Upon taking office on January 3, 2019, the newly installed House quickly passed legislation identical to what had passed the Senate in December. But, deferring to Trump, Republican Senate leaders refused to schedule a vote on the bill, even though it was the same legislation that they had passed in December. With both sides unwilling to budge, government operations remained closed over the sole issue of a border wall.
As public opposition to the shutdown rose and presidential approval ratings declined, budget negotiators crafted legislation that funded the government through the end of the fiscal year and appropriated an added $1.375 billion for border security and fencing. Decrying this amount as too paltry—he had asked for $5.7 billion—Trump nevertheless signed the bill on February 15.
But the president did not stop there. On the same day, he declared a national emergency on the southern border and, using authority designed for urgent action when Congress lacks time to act, transferring an additional $6.7 billion previously appropriated for other purposes to fund wall construction.
As things turned out, a third of this money already had been spent for its congressionally designated purposes. Even so, the remaining transferred funds coupled with the newly appropriated dollars roughly equaled the figure that Trump originally sought but that Congress, acting on a bipartisan basis, had refused to grant. In all, pursuant to the president’s emergency declaration, the Defense Department diverted $3.6 billion previously earmarked by Congress for 127 specific military construction projects in 23 states and elsewhere around the world to build small portions of Trump’s border wall.
How could the president repeatedly flout Congress? Shouldn’t denial of Congress’s core powers of oversight and impeachment insult the pride and honor of every legislator? Didn’t the Supreme Court already rule that executive privilege wasn’t a sufficient defense against impeachment in U.S. v. Nixon?
If we remember anything from high school civics, it is that Congress holds the nation’s purse strings. The Constitution vests all legislative power (which includes the power to appropriate and allocate funds) exclusively to Congress. Didn’t the Supreme Court uphold this bedrock principle of the separation of powers in its 1975 decision in Train v. City of New York after President Nixon tried to impound funds appropriated by Congress?