In recent days, the White House has increased its efforts to count votes and persuade fence-sitting GOP senators, according to two Senate Republicans who spoke on the condition of anonymity to describe the administration’s efforts. Undecided senators have received calls from the White House, and the message, according to one of the senators, is clear: Trump is taking names and noticing who opposes him — particularly if you are running for reelection next year.
Yet many Senate Republicans say that they would like more information before they decide whether to vote to protect Trump’s emergency declaration, such as legal rationales for the president’s action or whether a military project in their home state would be affected.
“I’m not aware that anybody has seen it yet,” said Sen. John Thune (S.D.), the No. 2 Senate Republican, referring to a list of military projects. “I think there would be a lot of our members who will be concerned about voting on this before they’ve seen that.”
The disapproval resolution has already passed the House and has sufficient support to pass the Senate, which would force Trump to issue the first veto of his presidency to strike it down. The House vote was well below the two-thirds majority that would be needed to override Trump’s veto, and the Senate vote is also likely to fall short of a veto-proof majority.
GOP senators on Thursday were discussing whether they could revise the disapproval resolution to constrain the emergency powers available to presidents. At the same time, House Democrats angry about the administration’s plans to redirect money to the wall without congressional approval were threatening to write new restrictions into upcoming legislation to limit the Pentagon’s ability to move money around.
Four Republican senators — Rand Paul (Ky.), Thom Tillis (N.C.), Susan Collins (Maine) and Lisa Murkowski (Alaska) — have announced plans to vote for the Democrats’ disapproval resolution overturning the emergency declaration, which would give it the needed support to pass the Senate.
In addition to those four, other GOP senators have expressed serious reservations about supporting the declaration. Many view it as an unprecedented intrusion into their constitutional authority over federal spending, with potential to set a dangerous precedent for future Democratic presidents.
Republicans’ discomfort about voting on the disapproval resolution has led to a concerted but inconclusive search in recent days for a way to amend it. As it stands, a presidential emergency declaration stays intact unless Congress passes a disapproval measure that can be vetoed.
But Sen. Mike Lee (R-Utah) is spearheading legislation that would amend the 1976 law Trump has invoked for his national emergency, mandating that such a declaration would automatically expire after 30 days unless both chambers of Congress vote to approve it.
“I think there’s a lot of support for that basic construct,” said Sen. Ron Johnson (R-Wis.). “From my standpoint, it’s a whole lot better than a show vote of disapproval that does not get enacted into law.”
Meanwhile, senators from both parties continued to press administration officials on how the emergency declaration and reallocation of money would be done.
Sen. Martha McSally (R-Ariz.) has sought assurances from the Pentagon that projects in Arizona won’t be touched and spoke privately with acting defense secretary Patrick Shanahan on the matter, although she declined to elaborate. And Senate Appropriations Chairman Richard C. Shelby (R-Ala.) said he requested “particulars” directly from Shanahan at a breakfast Thursday morning and hoped to receive them ahead of next week’s vote.
A Pentagon spokesman did not respond to a request for comment.
Several lawmakers said they don’t believe the Pentagon has actually developed a list of targeted military construction projects yet.
Sen. John Boozman (R-Ark.), who chairs an appropriations subcommittee that deals with military construction, said after a separate meeting with Pentagon officials Thursday that the military was waiting for guidance from the Department of Homeland Security as to its needs along the border before developing a list of military construction projects that would be tapped.
“They really haven’t gone that far,” Boozman said after his briefing with deputy defense secretary David Norquist and Robert McMahon, the assistant defense secretary for sustainment. But in a lunch with GOP senators this week, Homeland Security Secretary Kirstjen Nielsen told Republicans to speak to the Pentagon when senators pressed her for how military projects would be affected, according to an official briefed on the closed-door meeting.
Sen. Brian Schatz (D-Hawaii) — Boozman’s counterpart on the military construction spending panel who also attended the briefing — said the Pentagon has assured him it will “not allow political side deals to be cut” to protect certain military projects.
Schatz and other Democrats have said they will refuse to use upcoming spending bills to request money for military construction projects that Congress already appropriated money for.
“We’re just not going to allow them to raid military funds and then appropriate the same dollar amount two times,” Schatz said. “That’s not the way this process is supposed to work.”
Senate Democrats are circulating a letter to be sent to the Pentagon in the coming days, seeking clarity on how the administration will choose which military projects to tap for Trump’s border wall, what those projects are and why they are being chosen, according to a Democratic aide.
The $3.6 billion that would come from military construction accounts made available by Trump’s Feb. 15 national emergency declaration is the last of several accounts the administration plans to tap to build many miles of new fencing along the U.S.-Mexico border.
The administration would first use $1.35 billion provided by Congress for 55 new miles of fences and then turn to $601 million from a Treasury Department asset forfeiture account and $2.5 billion from a Defense Department counter-drug account.
The $3.6 billion would come last and is the only pot of money requiring a national emergency declaration — prompting senators to question repeatedly why a national emergency was needed at all.
“They can get the money they need from the first two pots, the forfeiture fund and the anti-drug fund, so I’m not sure why they’d ever even get to the third one, which is stirring up the controversy,” said Sen. Marco Rubio (R-Fla.). “But we’ll see how that resolves.”
Defense Department officials have said that no military construction project would be “canceled,” but only delayed until money to pay for them can be “back-filled” via Trump’s 2020 budget request, which is due next week.
In another concern for Democrats, the counter-drug account does not contain the $2.5 billion that the Pentagon wants to pull out of it, so it will be necessary to transfer money into it from other accounts. Military officials told lawmakers Thursday that this will be done via “reprogramming” about $1 billion in unused money from an Army recruitment program and another $1 billion left in retirement accounts after not as many people took an early retirement offer as expected.
Then, the resulting money in the counter-drug account will be reprogrammed for use to build the wall that Trump long claimed Mexico would pay for.
Democrats anticipate that the Pentagon will inform them about “reprogramming” the money but not seek congressional permission, which would be a change from past practice. Democrats are considering responding by including language in upcoming spending and defense bills that could potentially limit the Pentagon’s ability to move money around without congressional approval.
House Armed Services Committee Chairman Adam Smith (D-Wash.), noting that Congress has traditionally granted the Pentagon those reprogramming powers, said in a statement Thursday: “If DOD acts unilaterally to abuse this trust, Congress will act as necessary to defend its Constitutional prerogatives.”
Democrats also have another tool that could pressure Republicans on the national emergency declaration: provisions in the National Emergencies Act that require congressional votes every six months on whether the national emergency should be terminated.
Democrats have not made a decision on whether to invoke those provisions but view them as an important tool that could be used against Republicans in the future, according to a senior Democratic aide who spoke on the condition of anonymity to describe internal deliberations.