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Nancy Pelosi Put Her Faith in the Courts to Stop Trump’s Emergency Wall

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15.02.2019

President Donald Trump declared a national emergency on Friday in order to build a barrier along the U.S.-Mexico border. If he ultimately gets the wall he wants, it will only be because Democrats who control the House of Representatives let him have it.

Fortunately, the Constitution does not give the president unfettered authority to spend federal funds on his own pet projects. Instead, we have a finely crafted system of checks and balances. Unfortunately, that system of checks and balances doesn’t function when the actors who have the ability to check the president decline to use their power. By voting on Thursday to approve a budget deal without any explicit language barring the president’s end-run maneuver, House Speaker Nancy Pelosi and members of her caucus decided not to exercise their check. Now, they can’t count on the courts to do it for them.

The White House says that Trump plans to use $3.6 billion in military construction money for his wall. He can potentially do that on account of the 1982 Military Construction Codification Act, which says that when the president declares a national emergency “that requires the use of the armed forces,” the defense secretary may use available military construction funds to “undertake military construction projects … not otherwise authorized by law that are necessary to support such use of the armed forces.” The Trump administration will argue that the wall is necessary to support the 6,000 active-duty troops now at the southern border. (The administration also plans to supplement the military construction money with smaller amounts from other sources that aren’t linked to the announcement of a national emergency.)

Here’s what happens next: The 1976 National Emergencies Act allows Congress to override the president’s emergency declaration, and if the House passes a resolution to that effect, the Senate would have to put it up for a vote within 18 days. It’s not implausible that some Republican senators—including those like Susan Collins of Maine and Cory Gardner of Colorado, who are gearing up for 2020 re-election battles........

© Slate