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Why Congress Should Force Trump’s Hand on the National Emergency

February 18, 2019
Why Congress Should Force Trump’s Hand on the National Emergency
Senate Majority Leader Mitch McConnell (R-KY), Sen. Roger Wicker (R-MS), Sen. John Barrasso (R-WY) Sen. John Thune (R-SD), Sen. Roy Blunt (R-MO), and Sen. John Cornyn (R-TX). (Illustration by Hannah Yoest / Photo by Mark Wilson/Getty Images)

Last Friday, President Trump declared a state of national emergency in a last-ditch effort to deliver on the tattered remnants of his campaign promise to build a wall on the southern border, from the Pacific to the Atlantic, paid for by Mexico. Now, all eyes are on how Congress will respond. Under the National Emergencies Act of 1976, lawmakers have the power to pass a bill to override such a declaration—provided that they can muster a full two-thirds majority in both houses to surmount the inevitable presidential veto.

Democrats hold only a modest edge in the House of Representatives, and Republicans still maintain their hold on the Senate, where majority leader Mitch McConnell is conspicuously backing the emergency declaration. Assembling a coalition of congressional Democrats and Republicans interested in upholding the rule of law for a majority should not be hard, but reaching a two-thirds threshold will be a heavy lift.

This does not mean, however, that forcing the vote would be a waste of time. On the contrary: For Congress to attempt to bottle up the president’s misuse of emergency powers, even if their measure is ultimately vetoed, would be important both as a declaration of congressional prerogatives and as an official repudiation both of Trump’s action and McConnell’s decision to enable the executive rather than protect Congress’s power.

It’s ironic that over the course of the first two years of Trump’s administration, McConnell has become something of a bogeyman for President Trump’s most ardent cheerleaders: a Deep State assassin who has secretly snuffed out a MAGA agenda that, but for such betrayals, would have been fabulously, historically successful. (At other times, of course, they argue that Trump’s agenda has been fabulously, historically successful. A foolish consistency is the hobgoblin of small minds.)

The reality has generally been the opposite: McConnell has worked diligently as Trump’s bouncer in the Senate, quietly declining to bring to a vote any legislation that might embarrass or expose the White House. The result has been that, two years in, Trump remains the first president since James A. Garfield—who only served for six months before being assassinated in 1881—to have been spared the trouble of vetoing a single piece of legislation.

Why can’t McConnell do the same here? Because a provision in the National Emergencies Act stipulates that if the House votes to end the president’s national emergency, the Senate must hold a vote on it within 18 days. In this scenario, in other words, the ordinary procedural weapons of which McConnell is a master are useless. Assuming all Senate Democrats support the motion—and there’s no reason to believe they won’t—a mere four Republican defections are all it would take to put the bill on the president’s desk. So far, 14 of them have signaled some level of discomfort with the declaration, making that a strong possibility.

This, of course, is precisely why McConnell spent weeks trying to talk the president down from declaring a state of emergency. Yet, as soon as the president announced he would do so anyway, McConnell rolled over and said Republicans would support it—presumably judging that Republican voters would punish his caucus more strongly for disloyalty to Trump than for abdication of constitutional principles.

As others have argued, here and elsewhere, the president’s use of a national emergency to try to build a border wall contra the will of Congress is a constitutional trainwreck that is likely to run afoul of the courts. But this is no reason for lawmakers to sit on their hands and wait. For bipartisan majorities in a divided Congress to force Trump into his first veto over this power grab would set an admirable precedent and would help inoculate the legislature against future national emergency shenanigans.

And if it shows the president there are some sticky situations that even his trusty majority leader can’t get him out of—well, we’ll just call that a bonus.

Andrew Egger

Andrew Egger was a senior writer at The Bulwark.