The vote on President Trump’s emergency declaration was a defining moment for Republicans in the Senate; not a single one of them would have supported a similar power grab by, say, President Barack Obama or any other Democrat. And yet, 41 GOP senators backed the president’s assault on congressional powers, while 12 voted to uphold constitutional principles.
So the vote was a sorting hat for the senators, assigning them to our Honor Roll, Hall of Shame, Dishonor Roll, and Absolute Worst.
A note about this ranking: We operate on the principle that “to whom much is given, much will be required.” We judge the senators who knew better more harshly, because their vote was not simply run-of-the-mill hackery, but represented a conscious and deliberate violation of their principles and consciences.
From best to worst (in only somewhat rough order):
THE HONOR ROLL
Mike Lee (Utah)
Lee not only voted against the order, but tried to broker a compromise deal that would have permanently restrained the president’s power by requiring a congressional vote of approval for any new emergency declaration after 30 days. The idea was effectively killed by Speaker Nancy Pelosi’s refusal to bring it up in the House and by Trump’s rejection. But the episode was nonetheless heartening.
Lee is a constitutional conservative, who launched the Article I Project that aims to: reclaim Congress’s power of the purse, reassert congressional authority over regulations and regulators, and curb executive discretion. Unlike some of his colleagues listed (far) below, Lee actually tried to implement those principles.
At one time, Mike Lee and Ted Cruz were ideological soulmates. Last week, the contrast could not have been greater.
Marco Rubio (Florida)
Rubio deserves recognition because he is a high profile target for Trump and his allies and there are lingering tensions from the 2016 who-has-bigger-hands primary fight.
While Rubio has supported the border wall, he said “I cannot support moving funds that Congress explicitly appropriated for construction and upgrades of our military bases. This would create a precedent a future president may abuse to jumpstart programs like the Green New Deal.”
Like some of the other 12 GOP senators who opposed Trump, Rubio represents a state that is trending Trumpier, but unlike others, he faces re-election in 2022 and presumably has other ambitions that could be jeopardized by a high profile vote to defy a notoriously vindictive president. So it was a gutsy as well as a principled vote.
Roy Blunt (Missouri)
Blunt’s vote against Trump was a surprise because he is a member of the Senate GOP leadership and represents a state Trump won by more than 18 points in 2016. In voting against Trump, Blunt appealed to consistency. “I was aggressively opposed to the Obama administration’s attempts to circumvent Congress’s appropriating authority to prop up Obamacare,” he said. “The same principle should apply regardless of which party occupies the White House.”
One hopes rather than expects that Blunt’s comments shamed some of his GOP colleagues.
Pat Toomey, (Pennsylvania)
Toomey didn’t announce his decision until the day of the vote, but laid out a compelling case in an op-ed piece he published in the Philadelphia Inquirer.
While past presidents have, on rare occasions, used national emergency declarations to reallocate federal funds, never has one been used to circumvent duly enacted legislation after Congress refused a president’s funding request.
Our Constitution specifically gives Congress, not the president, the power to authorize federal spending. Congress’ “power of the purse” limits the executive branch from spending the people’s money without the consent of their representatives. This feature reflects a key pillar of our constitutional government: Responsibilities are to be separated between the different branches of government so as to prevent any single branch from centralizing power.
Were the president to successfully circumvent Congress using an emergency declaration, not only would our Constitution’s separation of powers be weakened, but a dangerous precedent would be set.
Regardless of the party in the White House, it is unacceptable for presidents to do what the Constitution only gives Congress the responsibility to do. I repeatedly criticized President Obama when he did this by unilaterally rewriting Obamacare, making unconstitutional executive appointments and granting legal status to millions of illegal immigrants.
It was wrong when President Obama did it and it is wrong for President Trump to do so now.
We couldn’t have put it better ourselves.
Jerry Moran (Kansas)
Like Blunt, Moran represents a state that Trump carried by more than 20 points (but elected a Democrat as governor last year), so Moran earns extra points for political courage. He also gets points for his thoughtful approach to the vote, posting a handwritten explanation of his decision on social media. Again, it came down to principle: “I aggressively opposed the overreach of the past presidents and believe that I cannot pick and choose to now look the other way,” he wrote. “If the constitution means one thing in the Obama administration and another in the Trump administration, the enduring value of the constitution disappears and other generation of Americans will be less free.”
Mitt Romney (Utah)
Romney gets points for not crushing our souls. After writing a scathing op-ed piece in the Washington Post lashing Trump’s character, the former GOP standard-bearer has been rather low-key, raising concerns that he would turn out to be a damp squib as a senator.
As Gabe Schoenfeld wrote for The Bulwark last month, this was the moment for Romney to step up.
Win or lose the fight, if he were to rise in the Senate to explain the stakes for the American project of limited government and forcefully speak out for the rule of law, he would secure an honored place in our history as a defender of the constitutional order at a moment when it is under grievous threat.
And, indeed, Romney did ultimately declare that: “This is a vote for the Constitution and for the balance of powers that is at its core. For the executive branch to override a law passed by Congress would make it the ultimate power rather than a balancing power. I am seriously concerned that overreach by the executive branch is an invitation to further expansion and abuse by future presidents.”
His fellow Utahan Mike Lee’s vote against the order undoubtedly made Romney’s vote easier, although it shouldn’t have mattered as much as it did.
Lamar Alexander (Tennessee)
Alexander has said he isn’t seeking re-election, so this could be seen as a risk-free vote for the veteran pol. But Alexander’s gravitas gave cover for other colleagues who may have been reluctant to break with Trump. He gets points for citing the late Justice Antonin Scalia who said:
“Every tin horn dictator in the world today, every president for life, has a Bill of Rights. That’s not what makes us free. What has made us free is our Constitution. Think of the word “constitution,” it means structure. That’s why America’s framers debated not the Bill of Rights, but rather the structure of the federal government. The genius of the American constitutional system is the dispersal of power. Once power is centralized in one person, or one part of government, a Bill of Rights is just words on paper.”
As he heads into retirement, this is not a vote Alexander is likely to regret.
Rob Portman (Ohio)
Portman bolstered his reputation as one of the grownups in the Senate by citing the bad precedent of upholding the order as well as the constitutional issues involved. He also aligned himself with Lee’s long-term project to restore the balance between executive and congressional power. “It’s imperative for the president to honor Congress’s constitutional role to make policy and appropriate money,” Portman said. “A national emergency declaration is a tool to be used cautiously and sparingly. That’s why I’ve cosponsored legislation offered by Senator Mike Lee to amend the National Emergencies Act to ensure Congress does have more control over these decisions in the future.”
Roger Wicker (Mississippi)
If you had Wicker in your pool as likely to buck Trump on this, give yourself a virtual high five. Mississippi is bright red, but Wicker was re-elected last year and he has emerged as a strong defender of congressional powers. “I am concerned about the precedent an emergency declaration sets, which might empower a future liberal President to declare emergencies to enact gun control or to address ‘climate emergencies,’ or even to tear down the wall we are building today,” he said.
Kudos as well to Susan Collins (Maine), Lisa Murkowski (Alaska), and Rand Paul (Kentucky).
THE HALL OF SHAME
All 41 GOP senators who voted to sustain the order belong in this Hall of Shame, but some are more shameful than others. In our “Dishonor Roll” we specifically single out the senators who had issued statements suggesting that they knew that the order was an attack on the separation of powers and a gross overreach of presidential power at the expensive of constitutional norms—and then voted to go along anyway.
At the top of our list of dishonorables:
Mitch McConnell (Kentucky)
It is McConnell’s job to protect the Senate as an institution. He knew the emergency order was an awful idea, warned Trump against it, but folded like a cheap suit when Trump ignored him.
We do, however, cut him a bit of slack, since quite clearly he provided little support for the White House’s effort to whip votes. We acknowledge his impressive political wiliness, but in this instance his responsibilities to the institution and the Constitution should have overridden his short-term political calculations.
John Cornyn (Texas)
“My concerns about an emergency declaration were the precedent it would establish,” he said before Trump issued the order. “I also thought it would not be a practical solution because there would be a lawsuit filed immediately and the money would presumably be balled up associated with that litigation. I thought there were other, better alternatives.”
Unfortunately, it came as no surprise when Cornyn, who is up for re-election next year, chose loyalty to Trump, since that has been his modus operandi for the last two years.
Ron Johnson (Wisconsin)
For a brief shining moment, it seemed as if my old friend Ronjon would take a stand against executive overreach. “It would be a pretty dramatic expansion of how this was used in the past,” he said. But, in the end, he sided with the president’s wall. His vote was especially disappointing since (1) the wall isn’t a particularly important or appealing issue in Wisconsin and (2) Johnson has said that this is his last term in the Senate, so he doesn’t have to worry about a primary challenge.
Mike Rounds (South Dakota)
What he said: “If you get another President who believes that climate change is the crisis of the day, that means they could then funnel money out of ongoing programs into climate change…” What he did: caved.
Chuck Grassley (Iowa)
Like the rest of these dishonorables, Grassley knew that the order was a legal hot mess. “I wish he wouldn’t have done it…I imagine we’ll find out whether he’s got the authority to do it by the courts.” But last week, he decided that he’d leave defending the Constitution up to other folks.
John Barrasso (Wyoming)
Barrasso furrowed his brow and expressed deep concerns. “I would prefer we get it done through the legislative process rather than a presidential emergency because I just think that’s not the path we want to do down….”On Thursday he voted to go down that path.
James Lankford (Oklahoma)
Lankford occasionally toys with independence. But the pose seldom lasts. Before Trump’s order, he cautioned against it. “ If you get into a court case in declaring a national emergency, moving from one fund to another is going to get caught up in the courts for a couple of years and it doesn’t solve the problem.” In the end, he voted to get out of the way.
Dishonorable mentions go to 30 other GOP senators who also voted to uphold the order. We’d list them all, but they seem to crave the obscurity to which their vote will undoubtedly consign them and which they have so richly earned.
But four others make the rock bottom of our list; and they are unlikely to be forgotten any time soon.
THE ABSOLUTE WORST
Lindsey Graham (South Carolina)
The psalmist tells us “put not your trust in princes,” by which he meant wobbly, obsequious politicians. It’s almost like he’d actually met Lindsey Graham.
Other than the obvious reasons, why is Graham here? Unlike the other dishonorables, Graham never pretended or hinted that he might oppose the emergency degree and, given the relish with which he embraces his role as Trump’s fawner-in chief, no one imagined that he would defy Trump.
Instead, Graham who was once one of Trump’s most caustic critics, as well as one of the funniest, most independent members of Congress, turned himself into a cheerleader for the order. His tradeoff appears obvious: His Uriah Heap persona has won him access and influence. But this week reminded us that Graham’s conscience and judgment seemed to have been buried with his good friend John McCain, who we imagine would be horrified to see what Graham has become.
Ted Cruz (Texas)
The night before the vote, Cruz was one of three senators (along with Graham and Ben Sasse), who crashed the White House to plead with Trump to give them some sort of an out on the emergency order vote. Trump refused, humiliating the senatorial supplicants. And Cruz took the humiliation like, well, Ted Cruz, and dutifully voted to give Trump what he wanted.
It was not the first time Cruz had to swallow humiliation on the issue. According to the Washington Post, at one point Cruz asked to see a legal memorandum justifying the order.
Cruz had raised a hypothetical question involving a Democratic senator from Massachusetts that struck at the heart of some of their concerns: What if a President Elizabeth Warren declared a national emergency to seize oil wells in Texas?
A Justice Department official in attendance said the White House had drafted a legal memo the OLC had approved. When Cruz asked to see that document, Pence said he would relay the request to Trump.
The White House never provided that memo, according to an official familiar with the discussions.
So, Cruz asked for the memo, was refused it, but voted for the order anyway. What made this worse, of course, was Cruz’s long record of posing as a constitutional conservative and his voluble protests against Obama’s executive orders. (Here’s an 11-minute video of Cruz objecting to executive orders on immigration.)
The only reason that Cruz is not even lower on this list of the absolute worst is that no one really expects much better of him anymore. As our Andrew Egger wrote last week:
Folks like Ted Cruz, on the other hand, don’t even really disappoint any more: the cocky Founders-quoting firebrand of yesteryear traded in his tight-lipped, finger-wagging Constitutionaler-Than-Thou routine to cheerlead for Trump ages ago.
So who is the worst of the absolute worst? Admittedly, this is a tough call. And you should feel free to come to your own conclusions.
Ben Sasse (Nebraska)
No vote was more surprising or disillusioning than Sasse’s to uphold the order. We know that Sasse is up for re-election next year and this may be a case of living to fight another day.
Sasse has created a carefully crafted image as a thoughtful, principled constitutional conservative who was willing to defy the worst elements of Trumpism. Last week, he set fire to that image.
Clearly, he knew better. “We absolutely have a crisis at the border,” Sasse said at one point, “but as a Constitutional conservative I don’t want a future Democratic President unilaterally rewriting gun laws or climate policy. If we get used to presidents just declaring an emergency any time they can’t get what they want from Congress, it will be almost impossible to go back to a Constitutional system of checks and balance. Over the past decades, the legislative branch has given away too much power and the executive branch has taken too much power.”
Well yes. So how did he explain his bizarre volte-face? “I think that law is overly broad and I want to fix it,” he said, “but at present Nancy Pelosi doesn’t. As a constitutional conservative, I believe that the NEA currently on the books should be narrowed considerably.”
As Eric Boehm at Reason pointed out, Sasse’s explanation did not make sense.
His argument, essentially, is that it’s more important to fix the many flaws with the NEA than to block a single instance of executive overreach made possible by the law—a law that he worries will be used by a future Democratic president in more and different ways to trample Congress.
But, c’mon, this isn’t a binary choice. Voting to stop Trump’s executive flexing doesn’t prevent Congress from doing more to limit presidents’ authority to use the NEA for politically-motivated national emergencies that really aren’t. Sasse could absolutely vote for Thursday’s resolution and continue advocating for further congressional action against the NEA—in fact, his position likely would only be bolstered by voting to stop Trump in this instance. That’s exactly what a self-identified “constitutional conservative” should do.
Instead, his statement makes it sound like Sasse is in favor of checks and balances for partisan reasons only. That’s a shame, because a vote in favor of the resolution would also fit with the concerns Sasse has (repeatedly) expressed about executive overreach and congressional complacency.
That is why Sasse is near the bottom of our list. Last week he embodied W. B. Yeats’ description of the best who “lack all conviction,” and he knew it. Sasse is a deeply intelligent man with a keen sense of history and culture; and we suspect that years from now he will look back on this vote with regret. He could have been the conscience of the senate GOP, but last week decided to align himself with the Grahams and Cruzes instead.
Thom Tillis (North Carolina)
Tillis worked hard to win this designation. He not only wrote an op-ed in the Washington Post declaring his opposition to Trump’s order, but then boasted of his political courage in doing so.
“It’s never a tough vote for me when I’m standing on principle,” Tillis told a Post reporter.
And then he caved in the most ignominious way possible. Last week’s vote exposed a man without pride, principle, or spine.
His flip-flop was as abject as it was surprising. Like Sasse, he faces re-election next year and he had been threatened with a primary challenge. But, as Commentary’s John Podhoretz noted, even in these cynical times, Tillis’s vote after writing an entire op ed making the opposite case “was a weasel action the likes of which we’ve rarely seen.”
Tillis defined the nature of his own intellectual dishonesty. In his Washington Post article, Tillis wrote:
It is my responsibility to be a steward of the Article I branch, to preserve the separation of powers and to curb the kind of executive overreach that Congress has allowed to fester for the better part of the past century. I stood by that principle during the Obama administration, and I stand by it now.
And then he wrote: “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.”
For that line alone, Tillis richly deserves the designation of Absolute Worst.