President Donald Trump has blamed congressional inaction for the government shutdown — and he happens to be correct. The only branch of government that can approve spending is Congress — the House and the Senate. The House already has passed spending bills, but it is the failure of the Senate to approve these bills that prevents government agencies from being funded and employees from being paid.
Allowing any president to orchestrate this action, or inaction, by the Senate erodes the Constitution and our governmental structure. Indeed, the defining underpinning of our Constitution is its division of power among the three branches of government, each vested with independent responsibilities. The legislative branch has exclusive power over financial and budgetary matters, not the president. For the Senate to allow itself to be directed by the president not to pass the spending bills unless it includes funding for the southern border wall is to cede power to the executive. Founding Father James Madison wrote in Federalist 47: “The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
The lesson of world history, cited by the founders, was that allowing the head of government to control budgetary authority ultimately leads to an “autocracy.” George Washington in his Farewell Address alluded to this when he wrote, “The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism.”
Congress has ceded far too much of its legislative authority to unelected, unaccountable, unresponsive bureaucratic agencies that are all too happy to “legislate” away to their hearts’ content. The agencies are ultimately controlled by the president, which means that every time there is a change in the White House, all of the regulatory law is brought into serious question. Because Congress and the bureaucrats are broken, presidents have taken to governing by executive order. Although each party blames the other for this form of governance, the truth is that the first cause isn’t the executive and his will to power — it is the failure of Congress to protect its constitutional powers. No matter which party is in the White House, the one certain fact is that when the executive branch assumes powers under questionable circumstances, it is through the acquiescence of the Congress.
We have seen this acquiescence over the year as Congress ceded its constitutional powers to the executive when it came to tariffs and immigration. But the recent collapse of the Senate leading to the longest partial shutdown in history, may be the most egregious example of executive takeover. Some of us were naive enough to believe that the Senate would come to its senses and realize its constitutional obligation to pass the spending bills.
Mitch McConnell, the majority leader of the Senate, has gone missing. And Lindsey Graham, a man who has been viewed as having constitutional scruples, has urged the president to declare an emergency and usurp the congressional power to appropriate while granting it to the president. This is an abdication of constitutional duty by the Senate. It should not be controlled by the president unless we are willing to accept the “tyranny” and “despotism” feared by our founders.
One can be angry with the executive for seizing power, but truth be told, it all happened because of Senate’s lack of will to perform its duty and constitutional mandate.
Sol Wachtler, a former chief judge of New York State, is distinguished adjunct professor at Touro Law School.