U.S. Supreme Court

The horrendous shootings in El Paso and Dayton have diverted the public's attention from a recent Supreme Court ruling which could be a predicate for further erosion of our separation of powers.  "Wow! Big VICTORY on the Wall" the president tweeted, "The United States Supreme Court overturns lower court injunction, allows Southern Border wall to proceed."

President Trump was referring to the very recent Supreme Court decision that allowed him to start using $2.5 billion from congressionally approved military spending to fund construction of his promised border war. Although the Supreme Court did not directly address the merits of the case, it is apparent that the majority feels the president has the power to apply funds to "the wall" despite the fact that this wall funding was expressly rejected by Congress in past budgets and is not a part of the bipartisan budget now being proposed.

At a recent Turning Point USA Teen Student Action Summit, President Trump said:  "Then, I have an Article II, where I have to the right to do whatever I want as president." His oft-repeated reference was to the presidential powers conferred on the chief executive by Article II, but he should have instructed the teens on Article I of the Constitution which, among other things grants the "power of the purse" solely to congress.  As James Madison, the father of the Constitution wrote: "***This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm***, all the overgrown prerogatives of the other branches of government."

In his frustration over Congress's failure to act on his wall requests, President Trump made good on his promise to sidestep Congress and build his border wall by the use of an executive order. This required 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 and to take funds appropriated for the Pentagon. If the Supreme Court ultimately addresses the merits of the case now before it and finds that the president has the power to declare a national emergency and redirect military appropriations to build the wall, it would also be permitting the president to take private property under the guise of military necessity.

In 1952, when this nation was suffering a far greater crisis than is present today at our southern border, a breakdown in labor negotiations between the United Steelworkers of America and nine other steelmakers threatened a national catastrophe. President Truman was told that a steel strike would encourage Soviet aggression because we would have to curtail our atomic weapons projects and would not be able to meet our commitments under the Mutual Defense Assistance act.  Truman was also told that we were running out of ammunition to fight the Korean War and that a steel strike would seriously impair that mission.

Rather than allow the labor negotiations to continue through a Taft Hartley cooling-off period, President Truman attempted to seize the steel mills by executive order through what he considered his powers under Article II of the Constitution to "preserve and protect" our citizenry and as commander in chief to prevent a strike which would threaten to deprive our war effort of needed armaments.

The Republicans fought against this bypassing of Congress; however, Truman was confident that the Supreme Court would support this bypassing of Congress and was encouraged by the fact that all nine justices had been appointed by Democratic presidents. Despite this, the Supreme Court voted six to three against Truman's attempt to seize the mills, the majority holding that the executive's authority must be predicated on an "act of Congress or from the Constitution itself."  The language of the court is instructive:

"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.  Congress can legislate against an executive order which attempts to encroach on its powers; however, our Republican-controlled Senate has refused to challenge the president. The Supreme Court also has the power to nullify an executive order as it did with Truman in the Youngstown Steel case; however, by the language in its recent decision, it appears that at least five members of that court are not willing to do so.

Again to quote James Madison: "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."

If neither the Senate nor the Supreme Court will act, President Trump and presidents who follow will continue to undermine the Constitutional separation of powers and we will revert to the tyrannical form of government so feared by our founders.

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.