The “Wall” as envisioned and promised by President Trump, will not be built without Congress. Although the President and his minions think that it can be done by executive order, they are wrong.

Presidents, past and present, have taken to side step Congress through governing by executive order. Although each party blames the other for this form of governance, the truth is that this isn't the first time a President attempted to take advantage of Congressional inaction by going the “executive order” route. When President Obama used an executive order to bypass Congress, he was scolded by Senator Ted Cruz who said: “Thankfully, the framers of our Constitution, wary of the dangers of monarchy, gave the Congress tools to rein in abuses of power. They believed if the president wants to change the law, he cannot act alone; he must work with Congress. He may not get everything he wants, but the Constitution requires compromise between the branches”

In his frustration over Congress's failure to act, President Trump has threatened to build his promised wall by using such an executive order. This would require him to declare a state of emergency and use, as he put it, a “military version” of eminent domain to take private land along the border necessary to build the wall. Even if we were to assume that he has the power to declare a national emergency and redirect military appropriations to build the wall, the courts would not permit him to take private property under any guise of military necessity.

President Truman attempted to do this during the Korean War. When a steelworker's strike threatened to deprive our war effort of needed materials, the President attempted to seize the steel mills relying on his assumed executive powers as commander-in chief. The Supreme Court held that the president's authority must be predicated on an “act of Congress or from the Constitution itself.”

“Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute.”

An understanding of the strength of our Republic, indeed the defining underpinning of our Constitution, is its division of power among the three branches of government, each vested with independent responsibilities. The legislative branch has exclusive power over financial and budgetary matters, not the president. For the Senate to allow itself to be directed by the president not to pass the spending bills unless it includes funding for the Southern border wall is to cede power to the executive. Founding Father James Madison wrote in Federalist 47: “The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

The President, who prides himself on his negotiating skills, must work with Congress to enact his agenda and, again to quote Senator Cruz, “A presidential temper tantrum is not an acceptable means of discourse.”

Sol Wachtler, a former chief judge of the New York State Court of Appeals, is a distinguished adjunct professor at Touro College Jacob D. Fuchsberg Law Center.