The Founding Fathers pointed to the impeachment power of Congress, through which a president could be removed from office for “treason, bribery, or other high crimes and misdemeanors,” as the path to rein in a president encroaching on congressional power.
In 1788’s Federalist 66, for instance, Alexander Hamilton wrote that “the powers relating to impeachments are, as before intimated, an essential check in the hands of [Congress] upon the encroachments of the executive.”
In Federalist 65, Hamilton described as impeachable “those offenses which proceed from the misconduct of public men, or in other words, from the abuse or violation of some public trust.”
No greater abuse of a public trust can be envisioned than the president usurping the power of Congress.
That, however, is precisely what President Donald Trump’s declaration Friday of a national emergency, in order to commandeer billions of dollars that Congress refused to appropriate to build a wall on the southern border, did. It is the constitutional role of Congress to appropriate (or, in this case, refuse to appropriate) public funds for a specific purpose. Congress voted not to fund $8 billion to build a wall, earmarking only $1.375 billion for that project; Trump’s announcement is an effort to usurp their constitutional authority.
As expected, the announcement promptly generated the first of several expected lawsuits challenging his declaration. But asking the judicial system to check Trump’s hijacking of the constitutional power of Congress is the wrong tactic and is likely to fail.
The dismal prospect for obtaining a permanent court-ordered ban on the president’s unilateral transfer of funds to “build the wall” is revealed by the deference the Supreme Court last year displayed in upholding Trump’s travel ban.
In approving the ban, Chief Justice John Roberts wrote that the challengers' "request for a searching inquiry into the persuasiveness of the president’s justifications is inconsistent with the broad statutory text and the deference traditionally accorded the president" in matters of national security and international affairs.
The Supreme Court’s language then promises only a perfunctory review of the basis for a national emergency: Because the president has declared a national emergency to build a wall, the Supreme Court majority appears ready to accept that subjective label at face value even if no emergency objectively exists.
But federal courts have long indicated that they don’t feel it is their role to question certain presidential decisions. In a prescient warning more than four decades ago, a federal appeals court cautioned that the courts would not second-guess even the most outrageous presidential invocation of a national emergency.
After President Richard Nixon declared a national emergency in 1971 over America’s financial reserves and then imposed an extra 10 percent surcharge on certain imports, Yoshida International sued to declare the action invalid and won at the federal trial court level. On appeal, the U.S. Court of Customs and Patent Appeals (now part of the federal Circuit Court in D.C.) reversed the trial court’s decision and issued this chilling prediction about the scope of presidential authority and its potential abuse by a future president.
“Though such a broad grant may be considered unwise, or even dangerous, should it come into the hands of an unscrupulous, rampant president, willing to declare an emergency when none exists, the wisdom of a congressional delegation is not for us to decide,” said the decision.
Quoting an earlier decision, Chief Judge Markey wrote: “We are not concerned with their wisdom. The question before the court is one of power, not of policy."
That flagrant abuse of power now has come to pass: Trump has declared an immigration national emergency even though his own government’s data proves that none exists. But while the Supreme Court may find that Trump has the power to hijack those funds to fulfill a campaign promise, Congress can also find that this is an abuse of power warranting his impeachment. Indeed, the Founders envisioned the power of impeachment as the fit remedy if the executive branch usurped congressional power.
There is precedent for this.
President Nixon technically had the power to fire the special prosecutor investigating him, the power to pardon those involved and the power to oversee the FBI and CIA in connection with the Watergate investigation. The existence of his power was not questioned; the abuse of that power, however, was found to be an impeachable offense.
In July 1974, the House Judiciary Committee adopted three Articles of Impeachment against President Richard Nixon; Article II, which passed 28-10, alleged an abuse of power by the president. In its final report, the committee stated: “For just such presidential misconduct the impeachment power was included in the Constitution.”
In a clarion call to the present, the committee declared that the abuse of power impeachment article was needed, lest a future president use his authority “for further usurpations of the power of other branches of our government. By adopting this article, the committee seeks to prevent the recurrence of any such abuse of presidential power.”
By defying Congress and unconstitutionally allocating federal monies for a project that Congress refused to fund, Trump has abused presidential power just as Judiciary Committee condemned almost 45 years ago.
Impeachment was the appropriate remedy then, as it is now.
Michael Conway served as counsel for the U.S. House Judiciary Committee in the impeachment inquiry of President Richard M. Nixon in 1974. In that role, he assisted in drafting the committee’s final report to the House of Representatives in support of the three Articles of Impeachment adopted by the committee. Conway is a graduate of Yale Law School, a fellow of the American College of Trial Lawyers and a retired partner of Foley & Lardner LLP in Chicago.
This article was first published on NBC News' Think.