On Thursday afternoon, twelve Republican senators — nearly a fifth of the GOP caucus — joined Senate Democrats to pass a resolution terminating the national emergency declared by President Trump last month in an effort to unilaterally appropriate funds for construction of his long-promised border wall. The 59–41 vote was a rare bipartisan rebuke of Trump, who will now issue the first veto of his presidency in order to preserve the emergency declaration.
The Senate GOP dissenters — Lamar Alexander, Roy Blunt, Susan Collins, Mike Lee, Jerry Moran, Lisa Murkowski, Rand Paul, Rob Portman, Mitt Romney, Marco Rubio, Pat Toomey, and Roger Wicker— ran the ideological gamut from conservative to moderate. Most argued that the president was operating outside the rule of law, while some simply called the emergency declaration an executive overreach that Congress had a duty to stop.
“Never before has a president asked for funding, Congress has not provided it, and the president then has used the National Emergencies Act of 1976 to spend the money anyway,” read a statement from Alexander, who plans to retire after three terms representing Tennessee rather than seek reelection next year. “The problem with this is that after a Revolutionary War against a king, our nation’s founders gave to Congress the power to approve all spending so that the president would not have too much power. This check on the executive is a crucial source of our freedom.”
Collins, the moderate from Maine who is the only senator facing a 2020 reelection campaign among the twelve Republicans to vote for the resolution, argued in a floor speech that Trump’s declaration failed to pass the longstanding five-part test of a genuine emergency: “necessary, sudden, urgent, unforeseen, and not permanent.”
“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,” said Romney, who took a hard-line stance against illegal immigration during his 2012 presidential campaign, in a statement. “This is not a vote against border security. In fact, I agree that a physical barrier is urgently needed to help ease the humanitarian crisis at the southern border, and the administration already has $4.5 billion available within existing authority to fund a barrier—even without an emergency declaration.”
Romney’s fellow Utahn, Mike Lee, thought Trump’s declaration was legal under the 1976 National Emergencies Act and was willing to uphold it if the law could be changed to curb the power it gives the executive. When a deal to pass Lee’s Article One Act, which would have satisfied his concerns, fell through, he decided to vote “no.”
Two of the more surprising votes against terminating the national emergency were those cast by Thom Tillis of North Carolina and Ben Sasse of Nebraska, both of whom face reelection in 2020. Tillis had been expressing disapproval of the emergency declaration for weeks, while Sasse has generally voiced more public criticism of President Trump than any other Republican in the Senate.
Sasse said in a statement that the National Emergencies Act (NEA) is “overly broad and I want to fix it, but at present Nancy Pelosi doesn’t, so I am therefore voting against her politically motivated resolution. As a constitutional conservative, I believe that the NEA currently on the books should be narrowed considerably. That’s why I’m an original sponsor of Senator Lee’s legislation, and it is why I have repeatedly gone to the White House to seek support for NEA reform.” On Wednesday, Pelosi shot down any deal to pass Lee’s bill and uphold Trump’s emergency declaration.
Republican senator Tom Cotton of Arkansas, who voted to uphold the emergency, spoke for the vast majority of Senate Republicans when he took the floor to argue that there is a genuine emergency on the Southern border and that President Trump’s declaration was both legal and proper. “Since last October, Border Patrol agents have apprehended more than 260,000 illegal aliens at the border, a surge of 90 percent — almost double —from the previous year,” he said. “He [Trump] is only exercising the statutory authority delegated to him by us. By this very body, the United States Congress. More than half of the $8.1 billion the president is using to build the wall and secure the border comes from non-emergency statutes passed by Congress.”
While Cotton said he respects colleagues who worry about a slippery slope, he dismissed that objection because Congress has “not delegated to the executive the power to confiscate guns, close power plants, or any of the other common entrants in the parade of horribles on the slippery slope. That’s the difference between lawful and lawless government, and it’s the case here.”
“If you want to see lawless executive action, by the way, you can look instead to the last administration,” Cotton added. “President Obama purported to give millions of illegal aliens legal status and work permits in clear violation of statutes passed by Congress. Strange how I don’t recall the self-styled ‘Resistance’ manning the ramparts and rushing to the Ninth Circuit back then. In fact, I only recall congressional fanboys of a president using the ‘pen and phone’ to encroach on our constitutional prerogatives.”
In 2014, when the House voted to rescind President Obama’s DACA program for illegal immigrants who arrived as minors, only four Democrats joined most Republicans to rebuke what many said was an unconstitutional action. Democrats controlled the Senate at the time, and Majority Leader Harry Reid never brought the legislation opposing DACA up for a vote.