The Constitution reserves budgeting and expenditures for Congress, not the president. Thus, diverting funds to build the wall is unconstitutional.
The Constitution makes it abundantly clear that the budget process begins in the House of Representatives. Bills adopted there move to the Senate for a majority vote. With both houses approving, bills move to the president for signature. Once the president signs, as he has the current fiscal year budget, that budget becomes law. His job then is to implement according to the terms of the budget.
Finding himself in a jam with Congress unwilling to fund the wall at his requested level, he’s declared a national emergency. Numerous lawsuits have already been filed against his declaration, and the courts will have to determine if his declaring an emergency and then stating that he didn’t have to declare an emergency fits in the constitutional definition of the powers of the president.
Without the Constitution and just using common sense, an emergency by definition is urgent. It isn’t something that could or could not be done. It would be mandated by an ‘or else’ threat. In other words, in this case, if we don’t build the wall, then x will happen, and it will happen soon. But if an emergency is declared that doesn’t have to be declared, by definition, it is not an emergency. It’s like calling 911 and talking about the weather.
Two channels have sprung to life as a result of the declared emergency. One is the legal route, which, as the president pointed out, will probably end up with the Supreme Court. That court should rule that the emergency and arbitrary presidential transfer of funds violates the constitutional bounds of presidential powers.
The other route demands that Congress perform it’s checks and balances task of challenging the president’s move. That would require both the House and the Senate to pass a bill to block the president’s action. The House has already started to act. However, since any bill, in order to pass into law, requires the president’s signature, the bill will fail.
Then the House and Senate have the option of re-voting the bill, but to override the president’s veto they must pass the bill with a two-thirds majority. That’s where pundits and news outlets are rife with speculation as to whether such a majority could be achieved. More likely in the House. But the Senate, which has prided itself with pusillanimous kowtowing to the president, would have to change its character and develop at least a modicum of backbone in order to take a stand.
In the meantime, we need to hold on to the fact that the Constitution in no way grants the president a blank check to do whatever he wishes with federal money, taxpayer money to be exact. We must count on the courts and the Supreme Court and on Congress to defend the Constitution as they have sworn to do. Otherwise this president and those following will feel free to exercise dictatorial powers our Constitution was designed to block.