Key to quelling the GOP revolt is legislation drafted by Sen. Mike Lee (R-Utah) that tries to claw back some emergency powers to Congress and whether the White House endorses some version of it. That would give Republicans who are uneasy about the constitutionality of the Feb. 15 declaration — yet nervous about publicly rebuking Trump — some political cover to side with the president.
Although four Republican senators have already announced they will vote to nullify the president’s emergency declaration, one of them — Sen. Thom Tillis (N.C.) — publicly indicated Tuesday after a private meeting with Vice President Pence that he could change his position if the administration and senators strike a deal on revising the National Emergencies Act. That would be enough to kill the resolution in the Senate, provided no other GOP senators oppose Trump’s declaration or alter their position.
Any vote to revise the emergency law is expected to be independent of the vote on the disapproval resolution, which has already passed the House and is expected to be put to a vote Thursday in the Senate.
“I know the concern that I have and that most Republicans have is that the Congress has ceded too much authority to the president — not just this president, but any president,” said Sen. Lamar Alexander (R-Tenn.), who also attended the private meeting Tuesday with Pence at the Capitol. “We’re looking for ways to get the power back where it constitutionally belongs.”
Much of the recent back-and-forth between the White House and Senate Republicans has centered on amending the 1976 emergency law that GOP lawmakers have criticized as granting too much power to the executive branch, even as they remain wary about crossing Trump.
Many Senate Republicans have started to align behind Lee’s proposal, which would amend the National Emergencies Act to say an emergency declaration would automatically expire after 30 days unless both chambers of Congress affirmatively vote to keep it.
“Standing up for the separation of powers is important,” Lee said Tuesday. “Over the last 80 years, Congress has voluntarily relinquished a whole lot of legislative power, handed it over to the executive branch. We’ve seen it in regulatory policy, we’ve seen it in trade policy, we’ve seen it in war powers, and we’ve seen it in emergency powers. And that’s not even an exhaustive list.”
But the White House, in private, had been skeptical of the effort and has proposed some changes to lessen its impact, according to senators and other officials who spoke on the condition of anonymity to discuss private deliberations.
One possible way to amend it more to the White House’s liking is to make that 30-day period in Lee’s proposal longer. In the Tuesday meeting with Republicans, Pence floated the prospect of revising the 30-day period to 30 legislative days, which could considerably drag out that timeline, according to one official familiar with the discussions.
Still, the White House has been more focused on doing what it can to limit GOP defections and ensuring the number of senators who oppose Trump does not reach anywhere near the two-thirds majority to override an expected veto by Trump. The White House nonetheless views the chaos as a mess of senators’ own making, one senior administration official said.
The senators who met Tuesday with Pence were Tillis, Alexander, Lee, Rob Portman (Ohio) and Patrick J. Toomey (Pa.). All five of these lawmakers have indicated varying levels of concern with the president’s emergency declaration.
Pence declined to comment as he left the Capitol. Another senior administration official said Pence heard the senators out and would take their arguments back to Trump.
Sen. Roy Blunt (R-Mo.), a member of Republican leadership, said he backed Lee’s effort but noted that two key factors remain: whether Trump endorses it, and whether Senate Majority Leader Mitch McConnell (R-Ky.) commits to bringing the legislation to the floor for a vote.
“There’s a lot of discomfort with the law,” McConnell told reporters Tuesday. Although he said Trump has the power for his current declaration, McConnell said GOP senators were now questioning: “Was it too broad back in the ’70s when it was passed?”
The proposal would not affect the current emergency declaration at the border but would for future declarations, including those issued by Trump. Lee formally introduced the bill late Tuesday but discussions with the administration were ongoing.
In addition to the three GOP senators who are solidly opposed to the declaration — Sens. Susan Collins (Maine), Lisa Murkowski (Alaska) and Rand Paul (Ky.) — somewhere between seven and 15 Republicans remain conflicted on the disapproval resolution, according to a senior GOP aide familiar with the discussions.
Of the undecided Republicans, about a half-dozen are deeply frustrated and concerned about the precedent set by Trump’s declaration, even if the 1976 law is changed, the aide said.
The Senate’s 47-member Democratic caucus is unified in support of the disapproval resolution, so just four Republican defections would give the measure the majority needed to pass.
“They’re being beaten up right now, so if you see anybody that’s got blood dripping out of their ear, they may be changing,” Paul said Tuesday of Republican senators who remained undecided. “There’s still a significant number, but there’s a lot of people being bruised and bullied.”
Tillis — who Republican senators and aides broadly believe is flippable — told reporters after the meeting that the discussions with the administration remain a “work in progress.” Inside a private luncheon with other Republican senators after the Pence gathering, Tillis made the case that if the White House agreed to some form of Lee’s legislation, that would mean a president would be giving up some of his executive powers — a rarity, according to a person briefed on the closed-door discussion.
Meanwhile, the White House has stepped up its engagement with Republican senators in other ways.
Sen. James Lankford (R-Okla.), who has pushed the administration for days on its legal rationale for declaring the national emergency, said Tuesday that he has started getting the information from White House officials. That has been “helpful,” said Lankford, who added that he plans to oppose the disapproval measure.
Sen. Joni Ernst (R-Iowa) spoke on the phone privately with Trump last week about the emergency declaration vote, along with other issues. Trump “had a level of frustration with him” about the situation in the Senate, Ernst said.
“The president’s doing what he feels is right. I’ll support him in that effort,” Ernst said. “But we really have abdicated our responsibility.”
Trump declared the border emergency after Congress refused to give him as much money as he wanted for his wall. Many Republican senators view the emergency declaration as a breach of the constitutional separation of powers that gives Congress authority over government spending.
Republicans have also voiced concerns about the precedent that could be set for future Democratic presidents to declare national emergencies on any number of issues.
But Trump has dismissed these constitutional concerns. He wrote Monday on Twitter: “Republican Senators have a very easy vote this week. It is about Border Security and the Wall (stopping Crime, Drugs etc.), not Constitutionality and Precedent. It is an 80% positive issue. The Dems are 100% United, as usual, on a 20% issue, Open Borders and Crime. Get tough R’s!”