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Politics & Policy

Reclaiming Constitutional Prerogatives

(Jonathan Ernst/Reuters )

The Senate’s passage of the resolution of disapproval rejecting President Trump’s emergency declaration is good news, for all the reasons the editors laid out yesterday. Twelve Republicans voted for the resolution: 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. They run the full ideological gamut in the party, and we can presume their reasons for voting as they did are varied, but they all deserve credit for standing up for the fundamental character of our Constitution.

What are the others thinking? For Republicans concerned at all about Congress’s prerogatives in our system, there might be two kinds of reasons for nonetheless voting to let the president spend money Congress specifically declined to appropriate. But both strike me as ways of shirking their responsibilities.

First is the argument that the president does technically have the legal power to spend that money under the National Emergencies Act. As I suggested here in January, this kind of argument is rooted in much too narrow an idea of the constitutional role of members of Congress. It may be true that, from the point of view of a judge, the misconceived National Emergencies Act allows the president to do this. But from the point of view of a senator, the circumstances are simpler: The president asked for money for something, Congress considered his request and (wrongly in my view, but nonetheless) declined to grant it, and the president has declared an emergency in order to spend that money anyway. Whether it’s technically legal or not, this is a slap in the face to the Congress and an abject usurpation of its powers and role. It is not how our system of government works. No self-respecting legislator should take it. Even if the president has used his authority legally here, the Congress should use its own authority legally to push back. Legislators are not judges and they shouldn’t think about the Constitution like judges.

Second is the argument that the president should get away with this because he’s right on the policy merits or has the better of the political merits. These policy and political arguments are distinct, but obviously related to each other. And they matter too. They are actually what makes this situation a real challenge for Republicans. It is the challenge of standing up for the Constitution even when doing so comes with policy costs or is politically inconvenient. Twelve Senate Republicans have proven up to that challenge today.

Among those who did not prove up to it, maybe the most surprising was Nebraska senator Ben Sasse. Sasse has always spoken up for Congress’s powers, and he clearly believes our system has become corrupted by the institution’s willful weakness. So why did he vote against congressional prerogatives here? The statement he released combines the legal, policy, and political arguments for letting the president run over Congress:

We have an obvious crisis at the border — everyone who takes an honest look at the spiking drug and human trafficking numbers knows this — and the President has a legal path to a rapid response under the National Emergencies Act of 1976 (NEA). I think that law 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.

I urge both the Majority and Minority Leaders to assist in moving this legislation through committee and quickly to the Floor for debate, negotiation, and passage through the full Senate. If this Congress is serious in its concerns about decades of executive overreach, we will devote ourselves to systematically reclaiming powers Congress has been imprudently granting to presidents of both parties for far too long. Today’s resolution doesn’t fix anything because the root problem here can’t be fixed with bare-knuckled politics but rather with a deliberate debate about the powers that Congress has been giving away and that the Executive has therefore claimed.

But if the president’s declaration is a form of executive overreach, why isn’t voting to withdraw it a form of rejecting executive overreach? In what sense is this a kind of “bare-knuckled politics” that is unacceptable here? And isn’t letting a president get away with this kind of action going to create a precedent that other presidents will use in ways that Sasse likes a lot less?

In fact, this was exactly the point Sasse himself made a month ago:

“We absolutely have a crisis at the border, but as a Constitutional conservative I don’t want a future Democratic President unilaterally rewriting gun laws or climate policy,” Sasse said in the statement. “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 balances. Over the past decades, the legislative branch has given away too much power and the executive branch has taken too much power.”

This statement from last month is basically a point by point rebuttal of the senator’s statement explaining his vote today. And to now suggest that a resolution rejecting and reversing the president’s move is somehow too political seems to me to get things backwards. Letting the president get away with this because Nancy Pelosi launched this resolution makes this too personal, not too political. The truly political and constitutional view of this situation would understand it not as about Nancy Pelosi and Donald Trump but as about Congress and the presidency—and seen in those terms, there is no excuse for the president’s power grab.

“Systematically reclaiming powers Congress has been imprudently granting to presidents of both parties for far too long” is exactly what needs to happen. This resolution, whatever the motives behind it and even though it will be vetoed, is at least a very modest step in that direction.

Yuval Levin is the director of social, cultural, and constitutional studies at the American Enterprise Institute and the editor of National Affairs.


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