nThe first words of the first article of the Constitution state: “All legislative Powers herein granted shall be vested in a Congress of the United States. . . .” Congress, however, was not granted untrammeled authority to legislate. The Constitution’s drafters, hypersensitive to unchecked powers, gave the President a role in the passage of laws. A bill does not take effect merely because the legislature passes it. A bill passed by both Houses of Congress “shall, before it becomes a Law, be presented to the President of the United States; If he approves he shall sign it but if not he shall return it, with his Objections. . . .” If the President does not approve—if he vetoes it—the bill then becomes law only if each House of Congress passes it again by a two-thirds vote. Thus, the Constitution gives the President an authority in the legislative process to check the passage of legislation through the veto provision. It does not, however, give him the authority to pass or initiate laws. Besides this veto over bills passed by Congress, the Constitution imposes a single duty on the President when it comes to legislation: The President “shall take Care that the Laws be faithfully executed. . . .”

The Constitution seems clear. The President can force a reconsideration of a bill before it becomes law and if he does so, he requires Congress to pass it with two-thirds majorities. But the President can’t make laws. Only Congress can do that.

I thought that I understood this division of legislative power under our Constitution, but our current president has been exercising many legislative powers. For example, a recent news story said that the president was going to bypass Congress and sell billions of dollars of arms to Saudi Arabia and United Arab Emirates; the president has restricted purchase of products made by Huawei, a Chinese telecommunications company; the president has taken money allocated for the military and shifted it to be spent on a border wall even though Congress rejected money for the wall; and the president every day seems to impose or remove some tariff.

These actions seem to be exercising authority expressly given in the Constitution to Congress. Thus only Congress was granted the authority “To regulate Commerce with foreign Nations. . . ”, and approval of arms sales to Mideast countries and the prohibitions on the purchase of Chinese products are regulations of foreign commerce. The Constitution enjoins that “No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law,” which require congressional passage. When the president shifts spending from the military to a border wall, he is drawing money from the Treasury even though Congress has not specifically authorized that appropriation. Only the legislative branch is given the authority to impose tariffs: “The Congress shall have Power To lay and collect, Taxes, Duties, Imposts and Excises. . . .” So, what’s going on here?

I am not suggesting the president is just ignoring the Constitution. Instead, he can cite constitutionally passed laws to claim legitimacy for his actions. For example, legislation grants Congress a review period during which the legislators can modify or prohibit a prospective arms sale. A provision of the Arms Export Control Act, however, allows the president to bypass Congress if he deems an “emergency exists which requires the proposed sale in the national security interest of the United States.” Similarly, a law grants the president tariff-setting power when he deems it necessary for “national security.” And the National Emergencies Act allows the president, after finding that a “national emergency” exists, to take money already allocated by Congress for another purpose and spend it to meet the national emergency. Thus, our president says that because of national security he can allocate funds from the treasury for a border wall even though Congress has not appropriated money for such a purpose.

People can argue that our president is not correctly using the powers he was given in these statutes, but I don’t want to get into such arguments here. Instead, I am pointing out that in the laws the president relies on for his actions, Congress has surrendered some of its legislative powers and given it to the president, who, under our Constitution, does not have these legislative powers. It might seem that these laws have recast our fundamental charter.

(concluded June 12)

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