Congress Poised to Block Trump’s Emergency Declaration

While not subject to filibuster, it's still subject to Presidential veto.

President Trump’s attempt to divert billions of dollars of money to border security through misuse of emergency powers may finally force Congressional Republicans to show some spine.

NYT (“G.O.P. Tries to Hold Down Defections Before Vote to Block Trump’s Emergency“):

Republican leaders scrambled to keep rank-and-file members in line ahead of a House vote on Tuesday to kill President Trump’s declaration of a national emergency on the Mexican border, as Democrats appealed to Republicans to protect Congress’s constitutional power to control federal spending.

The House’s vote on a declaration of disapproval will force Republicans to choose between the congressional prerogative over federal spending established in the Constitution and a president determined to go around the legislative branch to secure funds for a border wall that Congress has refused to grant.

Many Republicans were clearly uneasy with the president’s action, but few were ready to declare their support for legislation overturning it.

On Monday, Senator Thom Tillis, Republican of North Carolina, became the second Republican senator to say he would support the Democratic resolution.

“There is no intellectual honesty in now turning around and arguing that there’s an imaginary asterisk attached to executive overreach — that it’s acceptable for my party but not thy party,” Mr. Tillis wrote in an opinion article published Monday in The Washington Post.

Last week, Senator Susan Collins, Republican of Maine, said she would support a resolution, barring any extraneous additions. Other Republicans were holding their fire.

[…]

The resolution is expected to sail through the House on Democratic votes, but significant Republican defections would give it momentum in the Senate and could raise the specter — however remote — that Congress could override Mr. Trump’s promised veto, should the resolution reach his desk.

Democrats framed Tuesday’s vote as a referendum on protecting the separation of powers and Congress’s constitutional right to determine federal spending levels — an argument that appealed to several conservatives in both chambers.

[…]

But Democrats were also making a less lofty case to wavering Republicans. They circulated a list of all of the possible military construction projects in each district that could lose money shifted instead to Mr. Trump’s wall.

Several lawsuits have already been filed to challenge the merits of the declaration, but the easiest way for Congress to counter it is through the resolution of disapproval, authorized by the National Emergencies Act of 1976. Once it passes the House, the Senate is required under the law to take it up within 18 days.

[…]

Several conservative senators have expressed concern that Mr. Trump’s declaration is setting a precedent that could be used by a Democratic president determined to secure funds that Congress will not give.

Others have balked at the prospect of siphoning money away from military projects. Senator Charles E. Grassley, Republican of Iowa — who said he was “leaning no” on voting for the resolution — suggested that Congress review the power to declare national emergencies granted to the president under the National Emergencies Act.

Senator Lamar Alexander, Republican of Tennessee, called Mr. Trump’s declaration “unnecessary, unwise and inconsistent with the Constitution.” Yet he declined to say how he would vote on a resolution ending it, telling reporters, “I’m going to wait and see what the resolution says.”

Passage through the Democratic-majority House is a foregone conclusion. But Republicans have a 53-47 (including two nominal independents who caucus with the Democrats) majority in the Senate. They’ve already lost 3 votes. One more and Vice President Pence can’t break the tie.

And apparently, this is not a matter subject to a filibuster. A recent PBS NewsHour report notes that,

Were the House to approve the resolution, Senate Majority Leader Mitch McConnell would be required to bring it up for a vote on the Senate floor within 18 days. The resolution is “privileged” under parliamentary rules, meaning that it takes precedence over other matters that could be brought to the floor. Under Senate rules, the resolution cannot be delayed by a filibuster.

Our own Doug Mataconis refers us on Twitter to 50 U.S. Code § 1622 – National emergencies which states, in relevant part:

c) Joint resolution; referral to Congressional committees; conference committee in event of disagreement; filing of report; termination procedure deemed part of rules of House and Senate

(1) A joint resolution to terminate a national emergency declared by the President shall be referred to the appropriate committee of the House of Representatives or the Senate, as the case may be. One such joint resolution shall be reported out by such committee together with its recommendations within fifteen calendar days after the day on which such resolution is referred to such committee, unless such House shall otherwise determine by the yeas and nays.
(2) Any joint resolution so reported shall become the pending business of the House in question (in the case of the Senate the time for debate shall be equally divided between the proponents and the opponents) and shall be voted on within three calendar days after the day on which such resolution is reported, unless such House shall otherwise determine by yeas and nays.
(3) Such a joint resolution passed by one House shall be referred to the appropriate committee of the other House and shall be reported out by such committee together with its recommendations within fifteen calendar days after the day on which such resolution is referred to such committee and shall thereupon become the pending business of such House and shall be voted upon within three calendar days after the day on which such resolution is reported, unless such House shall otherwise determine by yeas and nays.
(4) In the case of any disagreement between the two Houses of Congress with respect to a joint resolution passed by both Houses, conferees shall be promptly appointed and the committee of conference shall make and file a report with respect to such joint resolution within six calendar days after the day on which managers on the part of the Senate and the House have been appointed. Notwithstanding any rule in either House concerning the printing of conference reports or concerning any delay in the consideration of such reports, such report shall be acted on by both Houses not later than six calendar days after the conference report is filed in the House in which such report is filed first. In the event the conferees are unable to agree within forty-eight hours, they shall report back to their respective Houses in disagreement.

Doug believes that multiple “shalls” take the filibuster off the table. That seems to be a reasonable reading.

It’s not fully clear whether President Trump still has the ability to filibuster but, given that the Supreme Court has ruled the legislative veto unconstitutional, one presumes so. That would require gaining a two-thirds majority in both Houses.

One hopes the trifold rationale of 1) preserving Congressional prerogative, 2) protecting military spending already appropriated by Congress from being raided, and 3) the prospect of a Democratic President using the precedent to force her preferred policies through over Congressional objection will be enough to stiffen the Republican spine.

At the same time, it’s worth noting that the politics of this are complicated. In most Republican House districts, Trump remains quite popular. His border wall is less popular but the issue of border security remains salient. A vote for the resolution—which is legally and institutionally unassailable—is therefore politically risky. A vote against it will be seen by the Republican base as a vote against Trump and against border security. The explanation for the vote, which is procedural and legal, is a much harder sell.

One would think a courageous vote here would be easier for Republican Senators, many of whom were just elected or re-elected and therefore have almost six years before they face the voters again. Still, don’t discount the real power of arm-twisting. Mitch McConnell has demonstrated that he’s willing to play hard ball.

FILED UNDER: Borders and Immigration, Congress, National Security, U.S. Constitution, US Politics
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. To clarify, my reading of the relevant statute indicates both that I do not believe the vote can be filibustered and that Senator Majority McConnell has no discretion on the question of bringing the matter to the floor for a vote. Ordinarily, of course, the Senate Majority Leader has almost exclusive control over the agenda absent some parliamentary moves that can be made to get around him (or her), but the mandatory language in the statute appears to preclude McConnell’s discretionary authority on this resolution.

  2. Daryl and his brother Darryl says:

    So far Murkowski, Tillis, and Collins say they will vote for the Constitution over Dennison.
    We will see when the actual vote is taken.
    Collins sold out women’s rights on Justice Boof…so there is little chance she will eventually vote against Dennison here.

  3. gVOR08 says:

    An override would need 21 Republican Senators to oppose the base over a principle. Ain’t gonna happen.

  4. Kathy says:

    Forget, for a moment, what a future Democratic president might do. Think instead what else Trump might do that Congress opposes, simply by calling “National Emergency!”

    And not just money. If Dennison wants to ignore a court order, why not just call “National Emergency!” and do as he wants? Or simply rule by decree, because “National Emergency!” and Congress isn’t passing the laws he wants.

    This needs to be stopped right now.

  5. Kylopod says:

    @Daryl and his brother Darryl:

    Collins sold out women’s rights on Justice Boof…so there is little chance she will eventually vote against Dennison here.

    First, Collins never said she’d vote against K then flipped. She kept her vote up in the air until the last moment. Here, she’s already on record saying she’ll vote against the order. That’s a crucial difference.

    Second, she (along with several other Republican Senators) did vote against ACA repeal multiple times. They don’t all vote in lockstep with Trump.

  6. Daryl and his brother Darryl says:

    @Kylopod:

    First, Collins never said she’d vote against K then flipped

    Regardless of what she said, or didn’t say…she claims to be an advocate of women’s rights…but caved on them the minute she was put to the test. We can’t know if it was naivete, or political calculation, but Justice Boof proved her to be a hollow vessel with his Louisiana dissent. Unlike other Mainers that I have met, she cannot be trusted.

    4
    4
  7. Kylopod says:

    @Daryl and his brother Darryl:

    Regardless of what she said, or didn’t say…she claims to be an advocate of women’s rights…but caved on them the minute she was put to the test.

    I didn’t say was a person of principle. What I said was that she didn’t commit herself to a particular vote then flip the other way at the last moment, which is what she would have to do at this point if she decides to vote against blocking the order.

  8. Pylon says:

    So who to target to swing the vote? Rand Paul? This strikes me as something he’d think could get him traction as a libertarian. Romney? Hawley?

  9. gVOR08 says:

    @Pylon: Rand Paul would do his usual act, grandstand right up to the vote and then cave. Brave Sir Mitt will be happy to be the 56th or 60th vote. Don’t know much about Hawley.

    In his Electoral College post Doug has a nice map of Trump job approval by state. I’d look for any Senator up for reelection in ‘20 in a pale or middling green state. (Too lazy to check who that might be. Missouri is dark green and Hawley’s not up til 2024.)

  10. MarkedMan says:

    @Pylon:

    Rand Paul? This strikes me as something he’d think could get him traction as a libertarian.

    This is funny on so many levels…

  11. MarkedMan says:

    @Pylon:

    So who to target to swing the vote?

    If Collins has come out saying she will vote against Bonespurs, then it means that McConnell figures he has the other 50 votes locked up and he gave her permission to pretend to have principles.

  12. Pete S says:

    @MarkedMan: I see it a little differently. I think McConnell will allow defections up to the 20 (I believe) required for a veto override, if those senators need the vote to help out with re-election. There is a non-zero chance that he has this pre-arranged with Trump and that Trump is actually looking forward to appearing tough by vetoing this bill.

  13. Franklin says:

    It’s not fully clear whether President Trump still has the ability to filibuster but, given that the Supreme Court has ruled the legislative veto unconstitutional, one presumes so.

    I’m not following this sentence.

  14. James Joyner says:

    @Franklin:

    I’m not following this sentence.

    IANAL but the legislation, passed in 1976, seems to offer the President certain latitude in declaring an emergency with the Congress retaining the power to terminate such emergency by a simple majority vote in both Houses. While I think that’s perfectly reasonable, given that Congress is essentially delegating its Constitutional powers to the President with the Act and should therefore be able to easy check excesses, the Supreme Court ruled emphatically in a 1987 case called INS v Chadha that such a “legislative veto” in unconstitutional.

    Put another way, the Act seems to not only get around the filibuster but also the veto. But, since SCOTUS ended legislative vetoes, Trump would presumably have the ability to veto a resolution.

  15. Pylon says:

    @gVOR08:

    I can’t disagree with you – I find Paul detestable, like his dad. I went by 538’s list of senators and the percentage of their voting agreement with Trump. Hawley is near the bottom.

  16. Kathy says:

    @James Joyner:

    Interesting. I’d no idea there had ever been such a thing as a legislative veto. I wonder, though, why Congress let statutes giving its authority to the president stand. Without a veto, it undoes checks and balances.

  17. James Joyner says:

    @Kathy:

    I wonder, though, why Congress let statutes giving its authority to the president stand. Without a veto, it undoes checks and balances.

    Mostly because Congress has long since decided that it can’t physically do most of the things the Constitution assigns to it. As a practical matter, they haven’t the time, manpower, or expertise. So, they delegate to the Executive. But that reverses the process: they now exercise their Article I powers mostly in the negative, through the oversight function.

  18. Gustopher says:

    @James Joyner:

    Also not a lawyer, but here is the Wikipedia summary.

    https://en.m.wikipedia.org/wiki/Immigration_and_Naturalization_Service_v._Chadha

    Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983), was a United States Supreme Court case ruling in 1983 that the one-house legislative veto violated the constitutional separation of powers.[1]

    This would be a two house legislative veto, if it passes the House and Senate.

    Not 100% sure I trust Wikipedia to be right in the summary, but I am quite certain that one is not two.

    Not certain in any way that the Supreme Court would rule in favor of a two house legislative veto, but the answer may not be as settled as people say it is.

  19. Kathy says:

    @James Joyner:

    I get that, and I’m sure it seems reasonable. but it seemed reasonable to let Sulla be Dictator for Life, since he’d probably give it up in a few years. and then it seemed reasonable to let Caesar be Dictator for Life, since he was a decent sort and a first-rate General. And in time you have Augustus setting himself up as Imperator, but he’s a good guy, too (more or less). But then you get people like Caligula, Nero, Caracalla, Commodus, etc.

    But then, this whole detour through Rome’s folly is scarcely necessary. You got Trump, didn’t you?

  20. Joe says:

    gVOR08 says

    An override would need 21 Republican Senators to oppose the base over a principle. Ain’t gonna happen.

    and I hear what your saying, but don’t know what you want. Should the Dems just walk away because the cause seems beyond quixotic? They will definitely get vetoed and probably can’t override, but they still need to make their record. Saying they should fold at the outset is just bullshit.

    James Joyner says,

    Mostly because Congress has long since decided that it can’t physically do most of the things the Constitution assigns to it.

    I would say won’t politically do most of the things the Constitution assigns to it. The executive has become a cult of personality. I wish we had a few more political martyrs in Congress who would be willing to politically die for the cause of asserting Congress’s Constitutional position.

  21. James Joyner says:

    @Joe:

    I would say won’t politically do most of the things the Constitution assigns to it. The executive has become a cult of personality. I wish we had a few more political martyrs in Congress who would be willing to politically die for the cause of asserting Congress’s Constitutional position.

    Most of what Congress has delegated hasn’t been to the President so much as the bureaucracy. The Patent and Trademark Office, the Food and Drug Administration, etc. Congress passes broad laws and lets the professionals fill in the gaps via regulation.

  22. James Joyner says:

    @Gustopher:

    Not certain in any way that the Supreme Court would rule in favor of a two house legislative veto, but the answer may not be as settled as people say it is.

    The case in controversy was a one-house veto. But the holding’s logic makes it clear that it would apply to a two-house veto as well:

    8. The congressional veto provision in § 244(c)(2) is unconstitutional. Pp. 462 U. S. 944-959.

    (a) The prescription for legislative action in Art. I, § 1 — requiring all legislative powers to be vested in a Congress consisting of a Senate and a House of Representatives — and § 7 — requiring every bill passed by the House and Senate, before becoming law, to be presented to the President, and, if he disapproves, to be repassed by two-thirds of the Senate and House — represents the Framers’ decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered procedure. This procedure is an integral part of the constitutional design for the separation of powers. Pp. 462 U. S. 944-951.

    (b) Here, the action taken by the House pursuant to § 244(c)(2) was essentially legislative in purpose and effect, and thus was subject to the procedural requirements of Art. I, § 7, for legislative action: passage by a majority of both Houses and presentation to the President. The one-House veto operated to overrule the Attorney General and mandate Chadha’s deportation. The veto’s legislative character is confirmed by the character of the congressional action it supplants; i.e., absent the veto provision of § 244(c)(2), neither the House nor the Senate, or both acting together, could effectively require the Attorney General to deport an alien once the Attorney General, in the exercise of legislatively

    Page 462 U. S. 922

    delegated authority, had determined that the alien should remain in the United States. Without the veto provision, this could have been achieved only by legislation requiring deportation. A veto by one House under § 244(c)(2) cannot be justified as an attempt at amending the standards set out in § 244(a)(1), or as a repeal of § 244 as applied to Chadha. The nature of the decision implemented by the one-House veto further manifests its legislative character. Congress must abide by its delegation of authority to the Attorney General until that delegation is legislatively altered or revoked. Finally, the veto’s legislative character is confirmed by the fact that, when the Framers intended to authorize either House of Congress to act alone and outside of its prescribed bicameral legislative role, they narrowly and precisely defined the procedure for such action in the Constitution. Pp. 462 U. S. 951-959.

    Emphases mine.

  23. James Joyner says:

    @Kathy:

    But then, this whole detour through Rome’s folly is scarcely necessary. You got Trump, didn’t you?

    I’ve argued for the entire history of OTB—and well before that, although not in public form—that the Federal government has taken on too much power and, especially, that the Executive has too much power. And, certainly, Donald Trump’s being in a position to exercise that power hasn’t softened my position.

    That said, we’re a complex, modern society. A lot more regulation is required in such a society than even the most ardent Hamiltonian could have envisioned in 1787. We’re too complex for Congress to effectively legislate on every matter at the level of detail. So, they set forth relatively broad goals in legislation and delegate detailed regulatory authority. It’s simply a necessity to have regulatory agencies, which are inherently Executive in nature in that they execute the laws.

  24. MarkedMan says:

    @James Joyner:

    Most of what Congress has delegated hasn’t been to the President so much as the bureaucracy.

    This may be the current Republican justification for why they can’t perform their basic functions but it’s nonsense. Of course Congress leaves it to the bureaucracy to handle petty details. That’s not the problem. It’s been decades since the Congress declared war. And, when in the minority, Republicans have used the filibuster whenever they lose a vote to the point that the news media routinely state that a bill “lost the vote” even when it won. Many Americans think that all legislation needs 60 votes in the Senate. When Republicans are in the majority they routinely block anything to come to the floor unless it can pass with only Republican votes.

    All politicians know that it is safer to be against something than for something. But Republicans have taken it to ridiculous extremes. They don’t do healthcare or immigration or infrastructure. They are so completely disfunctional that they have celebrations when they accomplish the pathetic minimum of keeping the government working with a continuing resolution, and this last time they even deferred to
    President Orange in that. Republicans want the position, but they don’t want the job that comes with it.

  25. James Joyner says:

    @MarkedMan:

    This may be the current Republican justification for why they can’t perform their basic functions but it’s nonsense. Of course Congress leaves it to the bureaucracy to handle petty details. That’s not the problem. It’s been decades since the Congress declared war. And, when in the minority, Republicans have used the filibuster whenever they lose a vote to the point that the news media routinely state that a bill “lost the vote” even when it won.

    We don’t disagree. It’s just not what’s a stake in this particular instance.

    Congress allowed for the possibility of emergency declarations in 1976. This was a solid Democratic Congress coming off a landslide victory in the 1974 midterms, with an accidental Republican President in Gerald Ford who had recently pardoned Richard Nixon and would face a “re”-election bid in November during a shitty economy. This was not Congress abdicating its power but recognizing that there might be times when exigency required a President have the authority to bypass the normal legislative process. And, incidentally, it’s a power that wasn’t abused for more than four decades.

  26. MarkedMan says:

    @James Joyner: Fair enough.