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Why Trump’s national emergency plan could present a ‘major constitutional test’

After signing a congressional funding bill, President Trump plans to declare a national emergency to obtain additional money for a wall along the U.S.-Mexico border. But would such an executive action be lawful? Judy Woodruff speaks with former Defense Secretary Leon Panetta about who decides what constitutes a national emergency and whether the president is attempting to circumvent Congress.

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  • Judy Woodruff:

    And we take a deeper look now at the president's authority to declare a national emergency to fund that southern border wall with former Secretary of Defense Leon Panetta. He was the director of the Office of Management and Budget in the Clinton administration. He went on to serve as President Clinton's chief of staff.

    He joins us now from Monterey, California.

    Secretary Panetta, thank you for joining us again.

    First of all, do you think the president has the constitutional authority to declare a national emergency over this issue that he's concerned about, the southern border?

  • Leon Panetta:

    Well, there's no question that presidents have the authority to declare a national emergency. And when past presidents have used that authority, both the House and the Senate have gone along with it, because they were legitimate national emergencies.

    In this case, there's a lot of questions as to whether or not this constitutes a national emergency. If it was a national emergency, why didn't he declare it a national emergency last year, when he was talking about the need for a wall?

    This year, looking at all the statistics, the numbers of people coming across the border has gone down. The enforcement has gone up. Generally, it's a hard case to make that it constitutes the kind of a national emergency that would be able to support the president's move here.

  • Judy Woodruff:

    Who makes the determination of whether it's a legitimate national emergency? Where does that decision come from?

  • Leon Panetta:

    Well, the fact is that Congress has the first say.

    If there's a resolution that is raised in both the House and the Senate to basically reject this declaration of emergency, then Congress would have the first say as to whether or not it really constitutes an emergency.

    But, ultimately, the courts will have to decide whether, indeed, the president has this kind of power. Look, Judy, we're operating under a Constitution that provides checks and balances. And those checks and balances are aimed at trying to limit the power of the president, the power of the Congress, power of the courts.

    That's why our forefathers created it. A president who now uses a national emergency to bypass the will of Congress with regards to funding for a wall is basically rejecting an important check and balance that was built into our Constitution.

  • Judy Woodruff:

    So you think that's what he's doing, that he's going around Congress, in effect?

  • Leon Panetta:

    Absolutely. There's no question about it.

    You know, this issue has been fully debated. It was debated by a Republican House and Senate last year. The funds were not fully provided, according to the president's wishes. It was debated this year in the Congress, both a Democratic House now and a Republican Senate, fully debated.

    They agreed to come up with $1.3 billion, close to $1.4 billion for the wall, and about 55 miles, as opposed to the number of miles that the president wanted. So Congress has, through its legislative process, under the Constitution, come up with what it agreed should be funded here.

    That's why Congress has the power of the purse. Our forefathers created a Congress that has the right to appropriate funds. The president now is rejecting that and trying to go around that authority.

    I think that creates a major constitutional test here as to whether or not the president has the power to do what he's trying to do.

  • Judy Woodruff:

    Let me just ask you about the mechanics of this, though, Secretary Panetta. I mean, does the president have any power, purely executive power, to change — to take money, say, from the — that's supposed to go to the Defense Department for another purpose, and move it to beefing up the southern border?

  • Leon Panetta:

    There's no question that there's some authority to make transfers of funds.

    There's some authority to try to reprogram funds. During the time when I was secretary of defense, we made efforts to reprogram funds, but we went to the congressional committees for their approval in order to be able to do that kind of reprogram.

    This president is talking about reprogramming and making transfers without any kind of authority check with the Congress of the United States. I think that does violate the separation of powers.

    Secondly, the fact is that the president, in trying to exert this kind of authority, is basically going to harm the very areas that he wants to support. He's talking about taking money from the Defense Department, the construction funds that have been designated for the Defense Department, for our bases and for our men and women in uniform.

    To do that weakens his argument with regards to our national defense, and, furthermore, I think it hurts the Defense Department in terms of its role and what it's trying to do to basically create the kind of force that the president says we should have.

  • Judy Woodruff:

    So, are you saying that there's no current legitimate pot of money somewhere in the government that the president could, again, with his own executive authority, take and turn that money to a different, or — but related use on the southern border, in order to beef it up, make it more secure?

  • Leon Panetta:

    Well, there's only three areas I can think of. One is this reprogramming. The other is the idea to transfer funds.

    The other is the possibility of using what are called forfeiture funds to be able to provide some funds. But those forfeiture funds are not going to provide the kind of money that the president wants in order to build a wall.

    Look, our system of government was built on the president, if he wants appropriated funds, you go to the Congress, and you ask for those appropriated funds. You have to convince the Congress to give you the money that you're out for.

    But, if you can't do it, if the Congress rejects that, the president can't suddenly say, well, I didn't get my way, so I'm now going to go around the Constitution to find ways to fund it and get around the power of the purse.

    I think the courts are not going to allow this president to be able to bypass the Constitution on this issue.

  • Judy Woodruff:

    Just very quickly, and finally, can you think of another instance, in your memory, of a president trying to do something like this?

  • Leon Panetta:

    It's — it's pretty difficult, although President Nixon, during the time he was in office, tried to impound monies that were appropriated by the Congress.

    And, ultimately, the courts rejected that use of the impoundment authority. And, as a matter of fact, the Congress then passed a law to make clear that that should never happen again.

    So when presidents have tried to go after the power of the Congress to appropriate funds, generally, the courts have supported the Congress with regards to the power of the purse. I think that's going to continue to be the case in the future.

  • Judy Woodruff:

    Well, talking to somebody who has been in Washington going back several administrations, former Secretary of Defense, former White House Chief of Staff Leon Panetta, thank you very much.

  • Leon Panetta:

    Thanks, Judy.

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