When does an executive order usurp the constitutional powers of Congress? Certainly when it directs distribution of funds for a purpose that has not been approved by Congress.
Recently, the House passed a measure that would revoke President Trumps executive order appropriating money to build a wall on the Mexican border. The United States Constitution gives Congress, and only Congress, the power to appropriate and spend American dollars — not the Judiciary, not the Executive Branch.
What President Trump is doing is essentially challenging Congress to give up — or at least share — the power to disburse federal funds. Republicans in Congress seem intent on letting it happen, maybe “just this once.” But they’ll do it the next time, and the time after that, and all the times after that.
It’s politically understandable why the Democrats oppose Trump’s move to fund the wall (fence, moat, hedgerow or whatever it is decided to be). Would they have been opposed if a Democratic president funded anything by executive order? Probably not, but there would still be some principled Democratic senators and members of Congress who would oppose it on constitutional grounds, just as there are today principled Republicans who will vote for the resolution to revoke the executive order. Four of them are on the record as supporting it; Lisa Murkowski of Alaska, Susan Collins of Maine, Thom Tillis of North Carolina, and most recently and importantly, Rand Paul of Kentucky, who is a true believer in the Constitution.
It is not easy for a senator to vote against a president of their own party. It is not easy to vote against the wishes of the majority leader. It comes with an understanding that there will be political repercussions against the offender by both the public and fellow party members. It takes courage, moral courage, and that is becoming more and more scarce in politicians.
A story I always remember is of Sen. Bob Kerrey’s vote in 1990 against a constitutional amendment to bar desecration of the American flag. Just a year before, the Supreme Court had ruled in Texas v. Johnson that flag desecration was a form of speech and therefore protected by the First Amendment. Conservative Justice Antonin Scalia voted with the majority.
Before he became a senator, Bob Kerrey was the governor of Nebraska and before that he was a Navy Seal who had put his life in danger to protect members of his unit. For that he got a Congressional Medal of Honor and an artificial leg to replace the one he lost saving his crew. Whether or not you think he was right or wrong in his vote, he had his reasons. Disgusted as he was about the idea of someone burning the Stars and Stripes, in Vietnam he was not only fighting for the flag, but for the Constitution and the right of Americans to speak their mind, no matter how odious or vile their words were.
Second was a matter of personal morality that enabled him to follow the dictates of his beliefs. He felt that if he did the popular thing and voted for the amendment — the easy vote which would involve no political repercussions — it would only make it easier for him to make the easy vote the next time, and the time after that, and all the times after that. So, he stood by the courage of his convictions, and, by the way, was re-elected to the Senate.
What I see in the Republican Senate caucus is many people voicing grave misgivings about the executive branch taking over the power of the purse, but they will wind up voting for something that will go against the Constitution and diminish their power. They know this. It will not affect their votes and it will help them get re-elected and getting re-elected is the main thing. Sometimes this is called “selling out.”
I admire anyone of any party with the political courage to make the unpopular vote on any issue whether or not I like or dislike it. It is not easy, and I speak from experience, but it is easier than thinking of yourself as selling out, which at least four Republican senators will not have to do.
Jim Elliott served 16 years in the Montana Legislature as a state representative and state senator and four years as chairman of the Montana Democratic Party. He lives on his ranch in Trout Creek. Montana Viewpoint appears in weekly papers across Montana and online at missoulacurrent.com.