The Republican-led Senate on Thursday voted 59-41 to terminate President Trump’s declaration of a national emergency at the southern border. Following the procedures laid out under the National Emergencies Act (NEA) of 1976, a dozen Senate Republicans joined every Democrat to block the president’s plan, which would use the NEA to divert Pentagon funds to build a border wall — even though Congress has explicitly refused to authorize such funding.
The House already passed the resolution disapproving the emergency declaration, with 13 Republicans joining the Democrats in that chamber. Now the bill goes to the president, who promises a veto. Neither chamber appears to have the required two-thirds support to override a veto. That means the president is poised to circumvent Congress’s refusal to fund the wall.
This is the first time Congress has used the NEA to try to claw back power delegated to the executive. And that’s important, even if the effort fails. Here’s why.
1. A crack in the GOP wall
Democrats only needed four Senate Republicans to join them to pass the resolution terminating the emergency declaration. They got 12. True, that’s barely over one fifth of the GOP conference. But in a period of intensely polarized and competitive parties, if even a few party members defect, it reveals sharp differences with the president — and on the issue Trump considers most important to his reelection. The president lobbied and tweeted to keep Republicans from siding with the Democrats. The public will notice the breakdown in elite GOP consensus, making it harder for the president to use the wall to rally Republicans to his side.
Republicans had tried to keep their caucus together by proposing a measure that would reform the NEA, requiring congressional consent to declare national emergencies — thus reassuring senators that some future Democratic president wouldn’t be able to use the act to thwart a Republican-controlled Congress. But Trump refused to entertain that proposal.
As a result, knowing the president would veto the resolution, GOP dissenters like Mitt Romney of Utah could have things both ways. They argued that they supported Trump’s wall but opposed his power grab from Congress, not least because of how it could be used by future Democratic presidents on, say, climate change or voting rights. Note though that those dozen dissenters hailed disproportionately from states where Trump fared slightly worse in 2016 — suggesting they were also watching voters back home. What’s more, all but one of the 21 GOP senators who face voters in 2020 sided with Trump — including Sen. Thom Tillis of North Carolina, who, after explaining why he would vote for the resolution, voted against it.
2. It’s hard to claw back power after you give it away
This was the second time the Senate rebuked the president this week. On Wednesday, in a rare use of the War Powers Resolution, seven Republicans joined every Senate Democrat to vote to end U.S. support for Saudi Arabia’s bombing campaign in Yemen. The House will no doubt adopt the Senate resolution, and the president is likely to veto this one as well.
Back in the 1970s, a Democratic Congress crafted both the War Powers Resolution and the National Emergency Act — and dozens of other statutes — when battling a Republican Nixon administration. Legislators who disliked what they saw as Nixon’s usurpation of their budgetary and war powers wrote these statutes to check presidents’ future use of such authority. Most of these laws include special procedures enabling House and Senate majorities to challenge executive power.
Lawmakers originally crafted these provisions when the parties divided control of Congress and the White House. At the time, split party control of Congress — in which one party has the House and the other the Senate — was exceedingly rare. Lawmakers likely did not anticipate Republicans’ situation today: The NEA’s procedures handcuffed the Senate Republican leader, Mitch McConnell, who could not protect Trump from Democrats’ challenges on the chamber floor. House Democrats this week forced Senate Republicans to take politically difficult votes against their own party’s president.
Still, these votes and likely vetoes show how hard it is for Congress to claw back power from the executive. Even if they succeed, such checks on executive power would be minor compared to the broad array of powers — from trade and tariffs to immigration and war — that Congress has handed the president over the past century.
3. The wall’s still not built
Even if Trump vetoes this resolution, the wall is a long way from being built.
The main problem is that Congress — when controlled by Republicans in 2017 and 2018 and now under split control in 2019 — has all but rejected the president’s entreaties to start construction of a wall. That slows down the president’s pursuit of the project in three ways.
First, appropriating funds must be done repeatedly, over years. And Congress can change its mind in the following fiscal year. House Democrats are likely to continue to refuse to agree to any new wall funding beyond token amounts for renovating fencing they approved for this fiscal year. And when it’s time for the parties to negotiate a deal to raise spending caps and the nation’s debt ceiling, Democrats could force Republicans to accept new limits on how border security funds can be spent.
Second, the NEA enables members of Congress to force votes every six months on whether to terminate a presidential declaration. Democrats could push again later this year and even into 2020 — giving themselves opportunities to remind their base, before the election, that they are standing firm against the president’s policies.
Third, administration officials still have to shuffle money within and across Pentagon accounts to free up funds for the wall. Legislators are already warning the Pentagon not to use money designated for projects in their home states.
What’s more, the Pentagon normally notifies defense panels on Capitol Hill when it moves funds around, informally often allowing the committees to object. That might not happen this year if the president leans heavily on the Pentagon to make progress on the border wall.
Even if Defense officials scrape together enough funds, it might be for naught. We’re already seeing litigation against this effort, and it will only increase — both from opponents of the emergency declaration and landowners reluctant to give their property to the government. Instead of breaking ground on new wall construction, the president might have to unfurl banners declaring the wall finished. In such contentious waters, the ship of state moves very slowly, if at all.