The months of will-he-or-won’t-he trepidation are over: President Trump is declaring a national emergency in an attempt to build a wall on the U.S.-Mexico border despite Congress’s refusal to authorize one. It’s a breathtaking assertion of executive power from the leader of a Republican party that has long claimed to be opposed to such governing. So now the most important question becomes: How will other Republicans react?
Not surprisingly, the decision has quickly already been denounced by many Trump skeptics in conservative media, primarily on the grounds that it’s a cynical, short-sighted play that will embolden similar power grabs by Democratic presidents in the future. Here’s Philip Klein making this case:
Those who seek to limit the size and scope of government should want it to be more difficult for the executive to arbitrarily use power. That Trump is taking this action means that a Republican president will have been on board with using emergency powers to undertake a massive infrastructure project without the consent of Congress. What’s more, the Republican leader in the Senate, along with no doubt plenty of other Republicans, will have signed onto this action.
Others argue that it’s not just a bad precedent, but a flatly illegal move, one that disastrously confuses military and civilian government tasks. David French of National Review has made this point:
The legal argument in support of the notion that constructing a border wall is “essential to the national defense” boils down primarily to the naked assertion that, well, courts won’t dare question the president. But words still have meaning. We are not in a state of declared war with Mexico. There is no invading army. Illegal-immigrant crime, as tragic as it is, isn’t an act of war. It would be strange indeed to argue that a border fence with an allied country is “essential to the national defense” when the border-security mission by statute isn’t even a military mission.
Meanwhile, Reason’s Ilya Somin points out yet another potentially catastrophic problem with the declaration—the federal land-grab all along the border that will likely result: “Trump cannot acquire the land he needs without forcibly displacing large numbers of property owners by using eminent domain. That inevitably threatens the property rights of hundreds, perhaps thousands, of Americans.”
Thus far the pundits. Ultimately, of course, what matters more is whether any congressional Republicans will be willing to stand for legal and constitutional principles. Because although the whole point of Trump’s national emergency is to go around Congress to build his wall, lawmakers aren’t totally helpless. The National Emergencies Act, which has governed the national emergency process since 1976, allows Congress to vote to cancel a national emergency that the president has declared. The catch is that since the president still retains his veto power over that vote, overriding him would require a two-thirds majority in both houses. That, in turn, would require approximately 20 Republicans in the Senate and 50 Republicans in the House to vote to kill Trump’s extra-legal plan.
Senate Republicans have been privately imploring Trump for weeks not to go to the nuclear option for exactly this reason: They don’t want to be forced to vote either to authorize an executive power-grab or to come between Republican voters and Trump’s wall. In recent days, some have even warned the president publicly against the measure. Last week, Senate Majority Whip John Cornyn of Texas called it a “dangerous step.”
But Republicans’ ground to oppose the emergency declaration grew shakier Thursday, when Republican Majority Leader Mitch McConnell announced he would support the president’s decision. Cornyn, who is close with McConnell in Senate leadership, merely said Thursday that the emergency declaration is “not a very practical solution,” since it is likely to be immediately tied up by challenges in court.
Other Republicans denounced the move more explicitly, however. “I don’t believe that the National Emergencies Act contemplates a president unilaterally reallocating billions of dollars, already designated for specific purposes, outside of the normal appropriations process,” Maine senator Susan Collins said in a statement. “The National Emergencies Act was intended to apply to major natural disasters or catastrophic events, such as the attacks on our country on 9/11.”
Several other GOP senators have made similar statements, including Lisa Murkowski, Pat Toomey, Marco Rubio, Ron Johnson, Mike Rounds, and Rand Paul.
The coming weeks are likely to be dominated by whip counting.