It’s not going to be easy for Senate Republicans to vote to disapprove of President Trump’s declaration of emergency at the border. They should do it, nonetheless, on principle and out of institutional self-respect.
At the conclusion of the showdown over funding for his border wall, Trump announced that, on top of the $1.3 billion Congress appropriated, he would tap roughly $3 billion from other sources and declare an emergency to get access to another $3.6 billion in military construction funds.
The spending is sequenced so the national-emergency funds come last, and they may never need to come into play if Trump gets Congress to cough up more funding in the next appropriations cycle. He is, very ambitiously, asking for $8.6 billion, which he’ll never get, but even a number far short of that would be meaningful.
The problem with the emergency declaration is that, even if it’s technically legal (a matter of debate that will go up to the Supreme Court), it is clearly pretextual and a way to do an end run around the congressional spending power. The president himself in his press conference announcing the emergency said that he didn’t have to do it, but that he wanted to build new fencing more quickly than he could without the declaration.
If anyone shouldn’t be okay with this, it’s Congress. Under the National Emergencies Act, it can vote to disapprove of an emergency declaration by a president, who can, in turn, veto the disapproval (which Trump will do). A resolution of disapproval already passed the House, and seems likely to pass the Senate, the only question being how many Republicans will defy the president and vote for it.
They are in an awkward position. Almost all of them support the president’s policy goal at the border, they just can’t support the means he’s using to get there. This is difficult to explain when the partisan divide is so stark and when Trump is portraying the resolution as an up-or-down vote on the wall.
Mike Lee has tried to broker a deal to approve of the current declaration in exchange for changing the National Emergencies Act to require the affirmative approval of Congress for future emergency declarations. This would be a welcome change, although the White House hasn’t gotten on board.
One reason that Congress has ceded so much power to the executive branch and the courts over the decades is that it’s so often unwilling to take political responsibility and to protect its own prerogatives. Congressional Democrats didn’t utter a peep of disapproval when President Obama rewrote immigration law on his own, with not even a whisper of statutory warrant.
A vote to disapprove of Trump’s emergency declaration obviously won’t reverse this long-term trend. It will show, though, that at least a fraction of one of the political parties is willing to stand up for how our constitutional system is supposed to work — even when the underlying political objective is a worthy one, even when it means crossing a president of their own party, even when it is politically inconvenient.
It’s a tough vote, but a worthy one.