Senate Republicans have a major problem on their hands. Due to a quirk in the law that they no doubt find very inconvenient, they will have to cast a vote (the horror!) on President Trump’s declaration of a fake national emergency to build a border wall — a wall that wouldn’t actually address the problem that supposedly justifies the declaration in the first place.
A few Republicans believe that with this declaration, Trump is abusing his power, so they are threatening to vote to terminate it. They currently have the numbers to succeed. But Trump would then have to veto the measure. This would get him and his voters very, very angry, which is intolerable.
So Republicans have hit on a solution: They may try to pass something designed to create the impression that they care about the general issues raised by Trump’s declaration — while leaving undisturbed the actual abuse that Trump is in the process of committing.
This is not parody. It’s what is actually happening right now.
The Post and the New York Times report that Senate Republicans are negotiating a measure that would limit the power of presidents to declare national emergencies, by requiring a congressional vote every 30 days to keep them going.
This measure would not terminate Trump’s national emergency, and the 30-day provision wouldn’t even retroactively apply to it. As Sen. John Neely Kennedy (R-La.) put it, this would allow Republicans to “express their concern” about Trump’s use of the emergency power, while simultaneously giving them a “way to express their support for the president.”
In other words, Republicans are openly and unabashedly stating that the whole point of this exercise is to give the very same senators who profess deep concern about Trump’s national emergency a way to support it, while also appearing to care about the underlying issues it raises. (Republicans must vote on whether to terminate Trump’s emergency, which they will do on Thursday, because the House already voted to terminate it, and under the law the Senate must act as well.)
It looks as though this may work. Right now, four GOP senators — Susan Collins, Lisa Murkowski, Rand Paul and Thom Tillis — say they’ll vote to terminate Trump’s emergency, enough to force Trump to veto the termination. But with this emerging compromise, Tillis “could change his position,” which could sink the measure, avoiding a veto.
Frustrated Trump is demanding ‘loyalty’
All of this is happening because Trump is demanding it. The Times brings us this remarkable detail about the pressure Trump is exerting on GOP senators:
In conversations with staff members and lawmakers, the president has made an emotional case for opposing the resolution, telling them that a vote in favor would be seen by their constituents as “a vote against border security” and warning that such a move would be regarded as disloyalty, according to three Republicans with direct knowledge of his actions, who spoke on the condition of anonymity.
“Emotional,” of course, means that Trump is in an unhinged rage. Attesting to this, Sen. Joni Ernst (R-Iowa) says that on a private call with Trump about this affair, the president expressed a “level of frustration."
Trump, in short, is threatening to unleash the wrath of his voters on Republicans who dare oppose him on this. Backing him up, Senate Majority Leader Mitch McConnell (R-Ky.) reportedly has privately told GOP senators: “This is not a free vote. The president is paying attention.” This leak is meant to demonstrate that McConnell is loyally backing the president, so let’s recall that McConnell himself had previously expressed opposition to the emergency declaration.
A fake emergency
Republicans know Trump’s declaration of a national emergency is a hideous abuse of power — they themselves have objected that it was done explicitly because Congress wouldn’t give him the wall money he wants. Indeed, Republicans continue to admit this: Ernst says she plans to “support” Trump’s emergency, while adding: “But we really have abdicated our responsibility.” What candor!
Republicans also know the basis for the declaration of the national emergency is itself utter nonsense. As it is, Trump regularly cites the spike in families coming to the border to seek asylum. That spike is real, but those people are largely turning themselves in … to seek asylum, which means a wall would not solve that problem. And remember, Republicans themselves did not give Trump his wall money when they totally controlled Congress. Some emergency!
To be clear, we actually do need limits on presidential national emergencies. But it’s not clear how much this new measure requiring a congressional vote every 30 days would do in practice, particularly under the present circumstances.
Elizabeth Goitein of the Brennan Center has argued that to limit abuses of emergency powers, Congress should require a clearer fact-based connection between the nature of any declared emergency and the solution being invoked, and define what counts as a national emergency in the first place. This would limit a president’s discretion to declare that a national emergency is whatever he deigns to say it is — a discretion Trump is abusing in total bad faith.
The 30-day measure wouldn’t do anything about that problem. In fairness, having Congress vote more often might be a good thing. But this measure is certain to fail in any case — there’s no way enough Democrats will help it pass, given that it evades dealing with Trump’s current emergency.
“Amending the law to deal with potential future abuses is important and necessary,” Goitein told me. “But it makes zero sense to say the law must be changed to prevent future abuses, but we’ll let this one go.”
Indeed, given that this measure is explicitly designed to give Republicans a way to avoid acting against Trump’s current national emergency, why assume that holding congressional votes more often on national emergencies would lead Republicans to act to constrain Trump on future ones?
Calling this capitulation might undersell what’s really happening here. What this whole exercise really confirms is that Republicans are actively enabling Trump’s abuse of power and merely looking for cover to get away with it.
Update: Speaker Nancy Pelosi just announced that she will not allow a House vote on this measure, should it pass the Senate. This is still very much a live issue, however, since Senate Republicans may well vote on it themselves anyway (since, after all, it’s designed to create cover to leave Trump’s current national emergency in place).
But the fact that the measure has no chance of becoming law shows even more clearly what an absurdity this exercise really is.