This paper intends to prove the hypothesis that the (over)use of executive powers undermines the long-term confidence in the institution of the president, as well as usurping the legislative branch incorporated by the U.S. Congress and dramatically shatters the system of checks and balances. On January 25, 2017, Trump signed an executive order, entitled "Border Security and Immigration Enforcement Improvements", aiming at enhancing the enforcement of border security along the US-Mexican border by way of the construction of a 2,000-mile border wall.
After losing a fight with the Democratic-led House concerning the identified expenses of 8.1 billion for the wall, President Trump declared on February 15, 2019, a national emergency concerning the situation on the southern border of the United States under the National Emergency Act (NEA). By doing so, President Trump could have eventually undermined the legislative branch, as Congress traditionally holds the power of the purse. On ground of potential infringement of the Appropriations Clause of the Constitution and the Administrative Procedure Act (APA), the Congress passed a joint resolution to void the President’s National Emergency Declaration, which was however vetoed by the President himself.
The issue with the construction of the US-Mexican border wall is deeply rooted in the power struggle of both the executive branch (the president, including his subordinate institutions from the government, most notably the White House and the Cabinet) and the legislative branch (the two chambers of the Congress, the House of Representatives and the Senate). This emergency declaration could have infringed one of the basic principles of the separation of powers as manifested and practised in the US constitutional law, enabling the president to act independently, ultimately disregarding constitutional allocation on funding matters, as in the prevailing case.
Table of Content
I. Introduction
II. Inter-branch conflict between the legislative and executive branch
1. Executive vesting powers
2. Constitutional ambiguity of the principle of separated powers
3. Partisanship as an accelerator of presidential powers
III. Arguments supporting a strong executive branch
1. Men of good character maintaining good government
2. Necessity for the president to act swiftly in times of national emergency
IV. Extensive presidential powers threatening two core democratic principles
1. Checks and balances
2. Separation of power in view of the abuse of presidential powers
V. Critical analysis of the Trump’s declaration of emergency
1. Grounds and existence of a situation of national emergency
2. Trump’s declaration of national emergency in the lights of the NEA
3. Legality of Trump’s declaration of national emergency
4. Necessity for congressional approval
VI. Conclusion
Research Objective and Key Themes
This paper examines the constitutional implications of President Donald Trump's declaration of a national emergency to fund the construction of a border wall with Mexico, specifically analyzing whether this unilateral exercise of executive power undermines the separation of powers and the system of checks and balances within the U.S. government.
- Constitutional provisions governing presidential and congressional powers (Articles I and II).
- The impact of partisanship and divided government on legislative-executive relations.
- Theoretical arguments for a strong executive branch versus democratic safeguards.
- Legal analysis of the National Emergency Act (NEA) in the context of recent presidential declarations.
Excerpt from the Book
1. Executive vesting powers
The competencies of the president are inter alia enshrined in article II of the US Constitution. According to article II section 1, “[t]he executive power shall be vested in a President of the United States of America” (Vesting Clause). An uncontested majority of scholars argue that the legal source and thus power of the president to issue an executive order derives from the Vesting Clause due to lack of any explicit reference. Looking at the qualification of the Vesting Clause, it is said that the power “shall be vested”, meaning that the power is generally granted to the President. Furthermore, the use of “shall” instead of “may” indicates the mandatory character of the clause implying that the power is indefeasible.
Furthermore, it is important to stress the analogy between article II and article III, as regards the Vesting Clause since they contain a similar wording. In contrast to article I, however, the Vesting Clause presented in article II is less conditional as it states, “All legislative Powers herein granted shall be vested in a Congress of the United States”. The use of “herein granted” elevates the wording to appear conditional to “shall be vested”. Some scholars hold the view that article II is meant to be read as the counterpart of the Vesting Clause in article III. Others, such as Lessig & Sunstein argue that the president’s powers are implicit “herein granted” in the provision of the respective article II. The latter opinion should be given priority because the Vesting Clause in article II clearly entitles the executive to be the subject of the vesting power without further specifying, whereas article III constraints the judiciary (in the latest authority the Supreme Court) by introducing further elaboration of what this power extends to. The plain language of the Vesting Clause generally conveys the meaning that the executive power is granted. If supposedly the executive power were not granted and no other provisions indicate the executive power of the president, then Congress, for instance, could define respective executive powers by statutes. It appears, however, inevitable that the executive powers of the president were indeed vested in one person.
Summary of Chapters
I. Introduction: Outlines the research context regarding the U.S.-Mexican border wall and defines the paper's hypothesis that overused executive power threatens democratic stability.
II. Inter-branch conflict between the legislative and executive branch: Analyzes the constitutional tensions between Articles I and II and explores how partisanship accelerates presidential unilateralism.
III. Arguments supporting a strong executive branch: Discusses theoretical justifications for a powerful presidency, emphasizing the importance of a decisive Chief Executive for national security.
IV. Extensive presidential powers threatening two core democratic principles: Evaluates the necessity of checks and balances and warns against the abuse of prerogative powers.
V. Critical analysis of the Trump’s declaration of emergency: Critically evaluates the legality of the 2019 border wall emergency declaration under the National Emergency Act and the limits of judicial oversight.
VI. Conclusion: Summarizes the findings, concluding that the consistent overuse of executive emergency powers risks eroding public and legislative confidence in the presidential institution.
Keywords
United States, Presidential Power, Executive Order, National Emergency Act, Separation of Powers, Checks and Balances, Border Wall, U.S. Constitution, Congress, Judiciary, Judicial Review, Partisanship, Constitutional Law, Federalism, Rule of Law
Frequently Asked Questions
What is the fundamental focus of this research paper?
The paper focuses on the constitutional conflicts arising from the use of unilateral presidential powers, particularly through the lens of President Trump’s declaration of a national emergency to build a border wall.
Which areas are identified as core themes in the work?
Key themes include the constitutional tension between the executive and legislative branches, the influence of political partisanship, and the theoretical debate surrounding the necessity of a strong executive.
What is the primary hypothesis of the study?
The author hypothesizes that the excessive use of executive powers, especially in states of emergency, undermines the institutional confidence in the presidency and disturbs the balance of power between the government branches.
Which methodologies are employed to analyze this issue?
The paper utilizes a legal-analytical approach, reviewing constitutional provisions, primary source case law (such as Youngstown v. Sawyer), and secondary literature on political theory and executive power.
What is the primary focus of the main body of the text?
The main body systematically explores the legal definitions of executive vesting powers, the theoretical basis for a strong presidency, and a critical legal analysis of recent emergency declarations.
What primary keywords define the scope of this work?
Significant terms include Separation of Powers, National Emergency Act, Executive Orders, and Checks and Balances.
How does the National Emergency Act (NEA) figure into the analysis?
The NEA is analyzed as the statutory framework that enables presidents to declare emergencies; the paper questions whether the conditions at the southern border legally satisfied the requirements of this Act.
What is the author's stance on the judiciary's role?
The author explores the tension between judicial review and the "least democratic branch" concept, suggesting that while judicial restraint is traditional, constitutional conflicts require more active scrutiny.
How does the paper differentiate between formalist and functionalist interpretations?
The paper discusses the academic debate between formalists, who view executive interference as unconstitutional, and functionalists, who prioritize interpreting constitutional provisions in light of modern, practical needs.
- Citar trabajo
- Olga Scheiermann (Autor), 2019, Presidential Exercise of Unilateral Powers. Construction of the Southern U.S. Border Wall with Mexico, Múnich, GRIN Verlag, https://www.grin.com/document/1000146
