Congress Grows a Spine: Thank Donald Trump for the Belated Attempt to Enforce the Constitution's Separation of Powers

By Jacob Sullum

March 20, 2019 5 min read

The War Powers Resolution, which Congress passed in 1973, and the National Emergencies Act, which it approved three years later, were both intended to curb presidential power grabs. But until last week, Congress had never used them for that purpose. We can thank Donald Trump for this belated attempt to enforce the Constitution's separation of powers.

Trump is hardly the first president to use the military however he likes without bothering to ask permission from Congress, which has the constitutional power to declare war. U.S. participation in the Saudi campaign against Houthi rebels in Yemen, the target of last week's War Powers Act vote, may be appalling on humanitarian grounds, but it is less direct than the bombs and missiles that Barack Obama deployed against Muammar Gaddafi's regime in Libya.

In that case, Obama claimed the War Powers Act did not apply, because blowing up Libyan targets did not qualify as "hostilities." The argument was so laughable that the Justice Department's Office of Legal Counsel advised against it.

Obama, like Trump, launched missiles into Syria without congressional approval to punish President Bashar al-Assad for using chemical weapons in that country's civil war. The unauthorized U.S. involvement in Syria, which Trump says he wants to end, began under Obama, who as a candidate admitted "the President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation."

Trump, like Obama, was a critic of executive overreach until he had the opportunity to engage in it. "Why is @BarackObama constantly issuing executive orders that are major power grabs of authority?" he wondered on Twitter in 2012.

After declaring an emergency he admits does not exist to obtain border wall funding that Congress has repeatedly declined to appropriate, Trump probably has a better idea of why presidents do that sort of thing. But his attempt to steal the spending power from Congress did not break new ground.

During George W. Bush's last few months in office, his administration unsuccessfully urged Congress to approve a bailout of the auto industry. Undeterred by its refusal, the Bush administration swiped the money from the Troubled Asset Relief Program, which was created to shore up financial institutions. Obama expanded this illegal use of TARP money.

In 2012, a few months before Trump's tweet complaining about Obama's abuse of executive power, Andrew Rosenthal, then the editorial page editor at The New York Times, explained why Bush's record on that score was worse. While Bush overstepped his authority gratuitously, Rosenthal said, Obama did it only when Congress, controlled by Republicans bent on blocking his agenda, refused to give him what he wanted.

Another way of looking at it, of course, is that a president is on especially shaky ground when he does something Congress has explicitly declined to authorize. That seemed to be the view of the 12 Republican senators who voted to override Trump's declaration of a border emergency.

Sen. Rand Paul, R-Ky., who supported Trump's request for border wall money, nevertheless faulted him for "seeking to expand the powers of the presidency beyond their constitutional limits." Paul said he would lose his "political soul" if he "decided to treat President Trump different than President Obama."

Paul also was one of seven Republican senators who voted to end unauthorized U.S. military activity in Yemen, echoing a resolution the House passed last month with support from 18 Republicans. "I don't think you can overstate how important it is that for the first time in the history of the country, the full Congress voted to tell the president that we can't be in a war," Paul said.

Trump vetoed the border wall bill on Friday, and the same fate awaits the Yemen resolution. But at least Congress tried to draw a line on the president's war and emergency powers, which is more than it has managed to do before.

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @JacobSullum. To find out more about Jacob Sullum and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.

Photo credit: at Pixabay

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