Is Trump’s wall-funding proposal constitutional?

By John Griffing

In the current rush to condemn President Trump for indicating he may utilize some of the money appropriated to the Department of Defense for border wall construction, it is useful to examine the similar actions of former President George W. Bush only a decade earlier.

In 2006, Congress passed the “Secure Fence Act” as part of a Department of Homeland Security appropriations bill, and President Bush signed it into law. Even before the appropriated (and dedicated) funds would later be misspent by Sen. Kay Bailey Hutchinson in an effort to satisfy the open-border goons on her donor list, Bush indicated in his signing statement that he would determine how to spend the dollars allocated for the purpose of border wall construction.

Bush’s action amounted to a virtual line-item veto.

Here are the relevant portions of Bush’s signing statement:

The executive branch shall construe as calling solely for notification the provisions of the Act that purport to require congressional committee approval for the execution of a law. Any other construction would be inconsistent with the principles enunciated by the Supreme Court of the United States in INS v. Chadha. These provisions include those under the headings “United States Visitor and Immigrant Status Indicator Technology;” “Automation Modernization, Customs and Border Protection;” “Border Security Fencing, Infrastructure, and Technology, Customs and Border Protection;” “Air and Marine Interdiction, Operations, Maintenance, and Procurement, Customs and Border Protection;” “Automation Modernization, Immigration and Customs Enforcement;” “Protection, Administration, and Training, United States Secret Service;” “Preparedness, Management and Administration;” “United States Citizenship and Immigration Services;” “Management Administration, Science and Technology;” “Research, Development, Acquisition, and Operations, Science and Technology;” and sections 504, 505, 509, 511, and 552.

The Supreme Court seemingly confirms the constitutional construction of the Bush administration under the controlling precedent, INS v. Chadha, which arrogates significant authority in the area of immigration matters to the executive branch.

In effect, Trump’s decision to construe funding disbursement according to his own understanding is no different than the almost identical action of Bush – so why the caterwauling from liberals? To read coverage of Trump’s most likely meaningless and casual remark at Vox or HuffPo, people may get the impression that “yes we can,” groupthink automatons are now disciples of deceased Supreme Court Justice Antonin Scalia.

The political left is known for its embrace of broad, open-ended constructions of the Constitution. Very few objective observers would readily describe the left-of-center worldview as consistent with right-of-center constructions like “original intent.”

In point of fact, former President Barack Obama once advocated for ripping up the Constitution altogether, intimating the need to “break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it’s been interpreted. …”

PolitiFact’s “ObamaMeter” provides a thorough study of occasions where Obama used “signing statements” to overturn specific funding (or other) major provisions of omnibus measures passed by Congress.

Likewise, a similar study by the Congressional Research Service (CRS) shows that the Bush administration’s signing statements greatly expanded the parameters of executive budgetary authority where it concerns appropriations.

“Of President [George W.] Bush’s 161 signing statements, 127 (79 percent) contain some type of constitutional challenge or objection, as compared to 70 (18 percent) during the Clinton administration. Even more significant, however, is the fact that these 127 signing statements were typified by multiple constitutional and statutory objections, containing challenges to more than 1,000 distinct provisions of law,” one CRS report stated.

Despite the bravado and total disregard for constitutional limits on power exhibited by the Bush and Obama administrations, Trump’s proposed actions would arguably still be unconstitutional (see, Train v. United States), and are at the center of the Nixonian “impoundment” controversy that led to the Congressional Budget Impoundment and Control Act. The “impoundment” statute was amended by the Budget Enforcement Act of 1990 (which most recently gave us “sequestration” woes.)

In addition to judicial precedent not favoring Trump, and statutory considerations, there’s the black-and-white language of the U.S. Constitution itself:

“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”

— Article I, Section 9, Clause 7

Illegal money-maneuvering may make America “great again” – though not likely – but, it can also do irreparable damage to the system that keeps all of us free.

That’s how President Harry S. Truman understood things to be.

“The Constitution and the Declaration of Independence can live only as long as they are enshrined in our hearts and minds. If they are not so enshrined, they would be no better than mummies in their glass cases, and they could in time become idols whose worship would be a grim mockery of the true faith,” Truman once wisely remarked.

In short, Americans should not embrace a philosophy that accommodates unconstitutional behavior simply because it benefits one or more key interest groups. The worst tyrannies begin with large gifts from the public treasury, and end with all-consuming totalitarian nightmares.

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