Pelosi Could Rein in Trump. Why Won’t She?

There's too much upside to fighting with him.
March 29, 2019
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Nancy Pelosi. (Photo by Win McNamee/Getty Images)

The downsides of our  politics of outrage have by now been pretty thoroughly established. The regular boiling-over stamps out any semblance of nuanced policy debate and cracks down mercilessly on anyone who runs afoul of the mob’s erratic whims.

Less remarked upon is how this creates perverse incentives for politicians. Nothing beats outrage to drive voters to the polls; why try to solve problems the other side caused now when you can use those problems to bludgeon them in the next election cycle instead?

Take, for example, the failure by House Democrats (and a pitifully meager smattering of House Republicans) to override President Trump’s veto of legislation opposing his national emergency declaration.

“The president’s lawless emergency declaration clearly violates the Congress’s exclusive power of the purse, and Congress will work through the appropriations and defense authorizations processes to terminate this dangerous action and restore our constitutional system of balance of powers,” Pelosi said in a statement following the vote. “In six months, the Congress will have another opportunity to put a stop to this President’s wrongdoing. We will continue to review all options to protect our Constitution and our Democracy from the President’s assault.”

The strategy Pelosi is pursuing is obvious. The National Emergencies Act of 1976 gives Congress the ability to challenge a national emergency declaration every six months; for as long as Trump is president and the emergency is ongoing, Pelosi will have the power to force a vote twice every year that reaffirms Congress’s disapproval of Trump’s power grab and horrifically embarrasses Senate Republicans.  It’s an incredibly strong position for the speaker to be in. (If only Republicans could have seen it coming!)

The situation looks great, in other words, for those whose biggest concern for the whole fiasco is whether it will help Democrats in 2020. It looks much worse, however, for anyone who cares about the damage Trump does to constitutional governance as he makes a mockery of the separation of powers. Because the reality is that no matter how many times Pelosi holds the same vote, she is still going to lose them all—she’ll peel off a few Republicans who stand to lose more by crossing their principles than by crossing Trump, publicly shame the rest, decry the inevitable veto, and get ready to do it all over again. Meanwhile, by dint of Trump’s unconscionable emergency declaration, the wall will keep going up: a monument to remind the generations of that time Republicans decided they were cool with the imperial presidency after all.

But what else can you expect the Dems to do? Well, funny you should ask. Because there’s a bill that would actively re-establish Congress’s power over presidents who try to abuse national emergency powers before the House right now—and Pelosi has already moved to squash it.

The bill, which originated at the height of the national emergency controversy in the Senate, is the brainchild of GOP Sen. Mike Lee, who was one of the few Republicans who supported the resolution to end Trump’s national emergency. The bill, called the ARTICLE ONE Act and introduced in the House by Chip Roy of Texas, would not contain any new constraints on the kinds of things presidents can declare emergencies. Rather, it would cause national emergencies to expire automatically after 30 days, unless Congress explicitly voted to authorize them for a full year. Any ongoing emergencies must then be reauthorized by Congress annually.

As legislating goes, it’s a remarkable, elegant solution to the current problem. Lee’s bill recognizes that the Constitution rightfully vests the president with broad powers that he can activate in times of sudden crisis—natural disasters, say, or mass acts of terror—that legislative action would be too sluggish and unwieldy immediately to address. But it also recognizes that the law as currently formulated is susceptible to the kind of abuse to which Trump is currently subjecting it: arguing that a particular problem should qualify as an “emergency,” not because it is sudden or unexpected, but just because it is really, really important.

Sounds great, right? Not to Pelosi. No sooner had Lee introduced the bill in the Senate than she vowed the House would not consider it. Why? Because the bill would not immediately cancel Trump’s latest emergency declaration. “Republican Senators are proposing new legislation to allow the President to violate the Constitution just this once in order to give themselves cover,” she said.

Perhaps this was a fair critique in the moment, as Pelosi tried to keep the focus on her own bill to cancel the president’s emergency outright. It makes far less sense now that Pelosi’s bill has failed. A large number of Republicans, even many who voted to allow Trump’s emergency to stand have expressed interest in a bill like Lee’s—even, at one point, Trump himself. It’s not impossible it could be made law even if the president were to veto it. At that point, it would at least limit Trump’s national emergency actions to a single year; surely that’s better than letting them go on indefinitely? Yet the speaker seems in no hurry to pass such a reform. The Bulwark asked Pelosi’s office this week whether in the wake of her bill’s defeat she would consider supporting legislation like Lee’s; they declined to comment.

Again, the strategy here is obvious: Pelosi has Republicans in a chokehold, and the prospect of genuine legislative reform sure won’t be enough to get her to relinquish it. As things stand, her 2020 pitch writes itself: “In 2018, you voted Democrats into office to put the brakes on this presidency. But would he take ‘no’ for an answer on his border wall? Not a chance! First he shuts down the government for a month—remember that fiasco?—and now he’s building the thing illegally as we speak! Only one thing to do, folks: Yank him out of office, get a Democrat in there instead.”

The calculation is one well-suited to our era: Pelosi believes voters will be more likely to punish Trump for building the wall without congressional consent than they will be to reward Democrats for reining him in. It is less advantageous politically, in other words, to act to stop the president’s abuse of power than it is to allow him to go right on abusing it, then trumpet to the American people: “Are you going to stand for this?”

And hey: That could be a winning pitch. But in the meantime, the structural issue that allowed Trump to abuse the national emergency system continues to go unaddressed. Blame Pelosi for this—but blame too an era where slamming your political opponents for undermining the Constitution pays better dividends than working yourself to reinforce it.

Andrew Egger

Andrew Egger was a senior writer at The Bulwark.