Unchecked power at the border

At the end of the Constitutional Convention in 1787, Benjamin Franklin was asked what sort of government the delegates had framed. “A republic,” he replied, “if you can keep it.” This was not an offhand remark. The Founders turned to novel and untested checks and balances to prevent the federal government from falling into chaos on the left or despotism on the right.

The Constitutional Convention in Philadelphia started off with what had been known as the Virginia Plan that Franklin, George Washington, James Madison, and other delegates had drafted while they were waiting for a quorum to assemble. Relying on such checks and balances between the branches to preserve the rule of law, the Virginia Plan would have had the president chosen by Congress somewhat like a parliamentary democracy.

Concern for the separation of powers led the Constitutional Convention toward an independently selected president, which in turn raised worries about potential for excessive executive power. “The first man put at the helm would be a good one,” Franklin said with a nod toward Washington. “Nobody knows what sort may come afterwards. The executive will always be increasing here, as elsewhere, until it ends in a monarch,” he declared.

Americans can now appreciate what Franklin feared. It is unfolding in the halls of Congress, at the Justice Department, and at the southern border. The third of these started first, soon after the Democrats recaptured the House in the midterms. The House and Senate approved identical funding bills, neither of which granted President Trump his requested border wall funding. However, one passed just before the new Congress was seated, and the other one passed just after that, so neither of them became law.

Cowed by the insistence of Trump for funding for the wall, Republicans had twice refused to schedule the bills for a vote, thus avoiding the sticky situation in which a Republican president would be forced to sign or veto legislation approved by House and Senate Republicans. As weeks went by and public outrage grew, negotiators agreed to a bill that included about a sixth of what Trump wanted for his wall. Decrying this concession as too little, he signed the bill but then did the sort of thing the Framers feared.

On the day that he signed the bill, he declared a national emergency on the southern border and, using powers meant for urgent circumstances in which Congress lacks the time to respond, rerouted an extra $6.7 billion appropriated for other programs to fund his wall. But at the time, illegal border crossings stood near recent lows, and the president had openly boasted that he used the emergency declaration to get around Congress. Since then, three judicial decisions have declared his move to reroute funds illegal, and Congress twice voted to terminate the emergency.

The Constitution gives Congress the sole power over appropriations. Spurning this flouts the checks and balances that undergird our liberty. Congress also has the sole power to declare war and the oversight power on executive actions, including by impeachment. Again in the last week, Congress has sought to assert its power over a looming war with Iran, but the president is pressing ahead under the dubious authority of decades old resolutions passed against Iraq. Now when Congress tries to hold the president accountable, he refuses its subpoenas, directs his executive branch officers not to testify, and then punishes them when they do.

Strongly buoyed by acquittal from an impeachment in which, pursuant to his demands, no witnesses were called in the Senate trial and most key ones refused to appear before the House, the administration has stated recently that it would divert an added $3.8 billion from defense spending appropriated by Congress to border wall construction. When will it end?

In the wise conception of the Founders, the protection of freedom and liberty in the Constitution is rooted in checks and balances. The critical separation of powers, they firmly believed, would best prevent tyranny. “All single governments are tyrannies,” Franklin warned, beginning with governments “lodged in one man.” Even the Constitution, he cautioned, would “end in despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic government.”

Washington also felt the same way. Checks and balances would preserve freedom and liberty only “so long as there shall remain any virtue in the body of the people,” he observed. As Franklin and Washington foresaw, our Constitution is corrupt only to the extent that we, the people, are corrupt. “Those who would give up essential liberty to purchase a little temporary safety,” Franklin stated, “deserve neither liberty nor safety.”

Edward Larson is a professor at Pepperdine University Caruso Law School, a winner of the Pulitzer Prize in history, and an author of several books. His latest is “Franklin and Washington: The Founding Partnership” this month.