“This is a gross abuse of presidential power,” Nadler said of the news that Trump would declare a national emergency to try to move money around to fulfill one of his central campaign promises. “This is an attempt to overturn the basic constitutional doctrine of separation of powers. Congress has the power of the purse. It cannot be tolerated.”
House Speaker Nancy Pelosi (D-Calif.) cautioned Thursday that no final decision had been made on the matter. A senior Democratic aide said the party’s strategy would depend on the wording of Trump’s declaration.
January 12, 2019 at 10:00 AM EST
Analysis | How Trump’s border wall would fit with previous national emergency declarations
President Trump has decided to declare a national emergency to build a southern border wall. These emergency acts are more common than you might think — the United States is currently under 31 of them.
But House Democrats have been anticipating for weeks a move by the president to try to circumvent Congress and unilaterally move funds around. And they’ve privately laid out a tentative plan to move a resolution rebuking Trump as well as a potential legal challenge for what they see as unprecedented executive overreach.
If their resolution fails to pass the Senate or is be vetoed by Trump, the House would probably sue. Rep. Jamie B. Raskin (D-Md.), a House Judiciary Committee member, said his discussions with House lawyers had centered around a 1952 Supreme Court ruling, Youngstown Sheet and Tube v. Sawyer, in which the court rejected President Harry Truman’s attempt to seize and operate the nation’s steel mills to avert a strike.
“They’re about to make the steel seizure decision the most famous Supreme Court case in Washington for the next couple months,” Raskin said about House lawyers. “The Supreme Court said a red light from Congress is a red light from Congress, and you can’t run a red.”
But the most immediate consequence of House Democrats’ move to force Republicans to take a position on Trump’s declaration is a major political headache for the GOP — and potentially the president. The party is deeply divided on the merits of Trump’s decision, and there’s a real possibility that some moderate Republicans could join with Democrats to rebuke their own leader.
Republicans hold a 53-to-47 advantage, but the resolution would only need a simple majority to pass.
In fact, when Trump privately told McConnell before this week that he was going to declare a national emergency, the Kentucky Republican talked him out of it — at least for a time. McConnell endorsed Trump’s plans on Thursday, but just days ago he privately warned the president that his party could turn on him over this matter.
For weeks, a vast majority of Senate Republicans cautioned the administration publicly and privately about the perils of declaring a national emergency to build the border wall. Either through administration aides, at conference lunches at the Capitol or directly to Trump, many senators said they would oppose such a move, according to two GOP senators who spoke on the condition of anonymity to describe party dynamics.
Those cracks were on full display Thursday night, as Senate Republicans digested the news.
“I think it’s a mistake,” said Sen. Susan Collins (R-Maine). “The National Emergencies Act was contemplated to apply to natural disasters or catastrophic events such as the attacks on our country on 9/11. For the president to use it to repurpose billions of dollars that Congress has appropriated for other purposes and that he has previously signed into law strikes me as undermining the appropriations process, the role of Congress and being of dubious constitutionality.”
Sen. Marco Rubio (R-Fla.), a senior member of the Foreign Relations Committee, called the declaration a “dangerous precedent” and said he would back a disapproval resolution.
“I don’t believe that’s the way we should be doing these sorts of things,” Rubio said. “I actually think that there’s a real constitutional question about it . . . I think things should be delegated to Congress; that’s the way the system was set up.”
Sen. Ron Johnson (R-Wis.) echoed those concerns, though he didn’t say if he would back a resolution rebuking the president: “It’s not an ideal state. This is a pretty dramatic — it would be a pretty dramatic expansion of how this has been used in the past.”
But other Senate Republicans — and most House Republicans — welcomed the president’s plan. Sen. James E. Risch (Idaho) said that “the Democrats leave him no choice” but to circumvent Congress because lawmakers would not approve wall money. Sen. Tim Scott (R-S.C.) said, “I would not oppose it.”
“This is a political fight worth having,” said Sen. Lindsey O. Graham (R-S.C.), who has for weeks encouraged Trump to take executive actions on the border wall. “If we’re going to define the parties and the differences going into 2020, this is a good issue for me.”
In the House, the conservative Freedom Caucus cheered — even though the group of three dozen hard-liners had chided President Barack Obama for making similar decisions that they dubbed abuses of power. Freedom Caucus founder Jim Jordan (R-Ohio) said there was a difference, that this was an “emergency” situation. Then he launched into a breathless defense of Trump’s actions, painting a dire picture of the border situation.
“How many caravans do you have to see? How much fentanyl? Do we need enough to kill 58 million Americans?” he asked. “How much more of a human-trafficking problem? How much more of a gang violence problem?”
But Democrats dismiss those numbers as just an excuse for bad behavior. They note that Trump has been in office for two years and is only now declaring an emergency because Congress has denied him his precious wall funding.
Many Republicans were also particularly concerned about the precedent that Trump’s declaration would set for future Democratic presidents. Rep. Cathy McMorris Rodgers (R-Wash.), a former member of House GOP leadership, asked in a tweet, “How would Elizabeth Warren or Bernie Sanders use this precedent for a national disaster declaration to force the Green New Deal on the American people?”
Pelosi, fully aware of the predicament for her Republican colleagues, seemed to relish a few moments goading the party on the very prospect of the tables being turned. In a news conference Thursday afternoon, she warned that Republicans should “have some dismay about the door that they’re opening” because a Democratic president could call the gun-control epidemic claiming thousands of lives every year an emergency — a pointed threat on an issue Republicans hold dear: gun rights.
“You want to talk about an national emergency? Let’s talk about today, the first anniversary of another manifestation of the epidemic of gun violence in America,” Pelosi said, referring to the Parkland, Fla., shooting that left more than a dozen high school students dead. “That’s a national emergency . . . A Democratic president could do that.”
She added: “So the precedent that the president is setting here should be met with unease and dismay by the Republicans.”
Both parties have worried aloud that emergency funding could be siphoned from other critical budgets to pay for wall constructions. Earlier this week, Sen. John Cornyn (R-Tex.) recalled in an interview having to explain to Trump that pulling from disaster aid to pay for the border wall could threaten relief for victims of hurricanes in Texas — which he, Sen. Ted Cruz (R-Tex.) and Texas Gov. Greg Abbott (R) vehemently oppose.
“I think he doesn’t believe that Puerto Rico relief funds were being used appropriately and so he was looking at pots of money that he thought, ‘Okay, I can look here and here,’ ” Cornyn said, describing their conversation as they traveled to McAllen, Tex., in early January. “But I think we pointed out that . . . he could not go after one pot of money without potentially jeopardizing all disaster relief funds.”
On Thursday afternoon, Cornyn reserved judgment on the emergency declaration. The administration has not announced where they will pull money to fund the new southern barrier.
It may not matter in the end. House Democrats are going to challenge the president regardless. House Rules Committee Chairman Jim McGovern (D-Mass.) said his staff has researched options for overturning a national emergency declaration and is waiting to see what action Trump takes. “He's going to have a fight on his hands,” he said.