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Jeff Renz, retired law professor

JEFF RENZ

Like American presidents who rely upon Congress for appropriations, Charles I, the 17th century king of England, relied upon Parliament to appropriate money (called “supplies”) for his programs and projects. Unlike American presidents, English kings had historically enjoyed rights to collect some taxes without Parliament’s approval. That power had eroded with time as English monarchs came to allow Parliament to “approve” their historic taxing power.

This changed in 1626, when Parliament refused to appropriate funds to pay for Charles I’s war with Spain. They also opened an investigation into some of the king’s chief advisers. They refused to re-authorize two taxes that Charles and his predecessors had enjoyed. In response, Charles I dissolved Parliament, shutting down constitutional government for two years. In the meantime, the king began taxing and spending by decree. As a money-saving measure, Charles also compelled people to house soldiers. He (and later Stuart kings) bypassed Parliament by extorting loans from English subjects. Without Parliament’s approval, he extended a “ship money” tax, collected from English ports, to inland cities and towns.

These abuses were well-known when the American Constitution was written. Both Benjamin Franklin and John Dickenson, key authors of our Constitution, had compared British taxation to “ship money.” Colonists considered the law cases that protested coerced loans and ship money as bright stars of English liberty.

Our Constitution’s authors included several measures to ensure that a president would not act like King Charles I. Under our Constitution only Congress has the power to tax. Only Congress has the power to borrow. All bills creating or raising taxes must originate in the House, which faces election every two years. Finally, only Congress may determine how tax revenues or loans may be spent. (“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law," Art. I, sec. 9, cl. 7.)

Now consider some interesting parallels:

  • After Parliament refused to fund his chief project, Charles I shut down the government.
  • After Congress refused to fund his chief project, President Trump shut down the government.

In 1628, King Charles I proposed calling Parliament back into session (reopening the government). He said, "Now this wee must lett you knowe that if you make this present supplie wee will then goe on with our Parliament, if not then wee must thinke of a more speedie way. . . .” (R. J. W. Swales, "The Ship Money Levy of 1628," Bulletin of the Institute of Historical Research 50, no. 122 (1977): 174-76.)

President Trump, on February 15, 2019, after Congress refused to fund his Wall, said, “So we are going to confront the national security crisis on our southern border. And we're going to do it one way or the other.”

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  • King Charles I raised money for his project by decree.
  • President Trump will raise money for his project by declaration.
  • King Charles I imposed taxes without Parliamentary consent.
  • President Trump has not imposed a tax but, he has called up the Reserves (they will have to be paid), he is going to use funds that were to be spent on Department of Defense construction projects (these will still have to be paid for), and he is going to use funds that were to be spent on narcotics enforcement (enforcement will still have to be paid for). In other words, Trump’s action coerces a responsible Congress to impose new taxes to pay for old commitments from which he, by decree, has diverted funds.

In short, President Trump is taking from Congress those very powers that the authors of the Constitution thought were necessary to prevent royal abuses of the treasury.

Parliamentary forces executed King Charles 370 years ago. President Trump has no worry about that because wiser heads substituted impeachment for beheading. But impeachment is divisive. It would be far wiser if more than two-thirds of Congress supported a joint resolution terminating the “emergency.” This would preserve the Constitutional balance.

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Jeffrey T. Renz is a retired clinical professor of law from the University of Montana in Missoula. This commentary is derived from a law review article ("What Spending Clause?" 33 John Marshall L. Rev. 81) that he wrote in 1999.

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