Democrats in Congress seem giddy this morning over their impending “victory” in the battle against President Trump’s southern border emergency declaration. What they see as the final nail in the coffin is Senator Rand Paul’s announcement that he would be voting in favor of a resolution blocking the declaration. The Hill describes it as a “GOP rebellion” in the making.
To be sure, with Rand Paul on board it looks as if the Senate will pass the same measure already pushed through in the House. And he’s taken the time to explain his reasons for going against the President in this debate. (Washington Post)
Paul (R-Ky.) said in a speech Saturday at the Southern Kentucky Lincoln Day Dinner that he “can’t vote to give extra-Constitutional powers to the president,” the Bowling Green Daily News reported.
“I can’t vote to give the president the power to spend money that hasn’t been appropriated by Congress,” Paul said, according to the newspaper. “We may want more money for border security, but Congress didn’t authorize it. If we take away those checks and balances, it’s a dangerous thing.”
Paul joins fellow Republican Sens. Susan Collins (Maine), Lisa Murkowski (Alaska) and Thom Tillis (N.C.) in opposing Trump’s move, a reflection of some resistance within the GOP to what lawmakers see as executive overreach and a test of the constitutional separation of powers.
Before getting to Senator Paul’s explanation for the decision, it’s worth noting what the passage of this bill really means in terms of the big picture. Barring some serious, seismic shift in the political landscape, probably nothing. The Senate will have enough votes to put the measure on Donald Trump’s desk, but it’s a foregone conclusion that Trump will break out his veto pen for the first time and shoot it down. After that, what will Trump’s opponents do? The votes don’t exist to override his veto. It may represent a symbolic victory for The Resistance in terms of fracturing the GOP on this one issue, but that’s about all. Trump’s plans would still move forward.
With that said, I wanted to address one talking point that Rand Paul appears to have inherited from the Democrats. They’re all claiming that Trump is “spending money that hasn’t been appropriated by Congress.” It’s a nice sound bite, but that’s really not true. For better or worse, the funding in question was already appropriated by Congress for the military. And as I discussed previously, there are already at least two laws on the books (passed by Congress and never repealed) that allow for military funding to be moved around in this fashion.
Title 10, Section 2808 allows the POTUS to do this during a national emergency or state of war. (And if you can’t undo his emergency declaration, he’s staying within the boundaries of that law.) But even if you block the emergency declaration, there’s a very solid case to be made that Title 10, Section 284 allows the Justice Department and the Department of Defense to authorize the use of military funds for construction projects within 25 miles of the border in the interest of preventing drug trafficking and/or international crime.
In either of those scenarios, money that was properly appropriated by Congress for the military is being legally used for these purposes. As far as oversight goes, Congress coudl still prevent those actions through a resolution such as the one currently being considered, provided enough members support the decision. And that includes having enough support to override a veto. If you fail to stop him because you don’t have enough votes, that’s not a failure of the constitution or an abuse of power by the executive branch. It’s precisely how the system is designed to operate.