Democrats argued that Trump’s claim of a crisis at the border was baseless and that he was embarking on the road to dictatorship by unilaterally declaring an emergency to try to get money from U.S. taxpayers to fulfill an unpopular campaign promise.
“We are not going to give any president, Democratic or Republican, a blank check to shred the Constitution of the United States,” House Speaker Nancy Pelosi (D-Calif.) said on the floor ahead of the vote. Holding up a pocket copy of the Constitution, she asked Republicans: “Is your oath of office to Donald Trump or is your oath of office to the Constitution of the United States?”
Republicans countered that Democrats were ignoring a real crisis at the border and said that Trump was well within his rights to declare a national emergency, since he was acting under provisions of a law passed by Congress, the National Emergencies Act of 1976. Tuesday’s vote was the first time since passage of the law that Congress has invoked provisions allowing for a resolution of disapproval to nullify a presidential emergency declaration.
“There is a national emergency at the southern border that the Democrats will declare today doesn’t exist,” said House Minority Leader Kevin McCarthy (R-Calif.). “The president has the authority to do it, and we will uphold him.”
Trump issued the emergency declaration Feb. 15, as part of a deal to keep the government open after a 35-day partial shutdown over Christmas and much of January. The president agreed to sign a spending bill that keeps the government funded through Sept. 30 and provides $1.375 billion for 55 miles of fencing along the border in Texas, but he said he needed billions more. The administration plans to redirect an additional $6.7 billion from several sources, including $3.6 billion from military construction projects that can be accessed via the emergency declaration.
Trump had long claimed that Mexico would pay for the wall.
Now that the House has passed the disapproval resolution, the Senate will have approximately 18 days to take it up, a timeline set by the National Emergencies Act. The law also specifies that passage in the Senate requires only a simple majority, not the 60-vote supermajority often required in that chamber.
That means only four Republican votes in favor would ensure passage of the disapproval resolution — presuming that Democrats stick together as expected. Republican Sens. Susan Collins (Maine), Lisa Murkowski (Alaska) and Thom Tillis (N.C.) have said they plan to vote for the disapproval resolution, and other Republicans have been voicing concerns, including at a closed-door lunch Tuesday with Vice President Pence where about a half-dozen senators spoke up with reservations, according to one person in attendance.
One of those senators was Sen. Ted Cruz (R-Tex.), who questioned a Justice Department attorney present about how a future Democratic president might be able to use similar emergency powers, according to an official briefed on the meeting who spoke on the condition of anonymity to describe it.
“I’m still reviewing the legal authorities and the arguments that the administration has put forward,” Cruz said later.
After attending the lunch with Pence, Sen. Rand Paul (R-Ky.) said he, too, was still evaluating the resolution, but he voiced deep concern about Trump’s decision to declare an emergency.
“I don’t think it’s a good way to run government — to run government by emergency,” Paul said. “I think the Constitution’s pretty clear that the power of the purse is with Congress, and I think the Supreme Court has been pretty clear in Youngstown Steel that executive orders that go against the will of Congress won’t be upheld by the Court.” He was referring to Youngstown Sheet & Tube Co. v. Sawyer, a 1952 case.
A coalition of states has filed suit against the emergency declaration, as have some outside interest groups.
Senate Majority Leader Mitch McConnell (R-Ky.) said the Senate would take up the disapproval resolution before the next congressional recess, which is scheduled to begin March 18.
“I personally couldn’t handicap the outcome at this point, but we will certainly be voting on it,” McConnell said. He said Republican senators agree that there is a crisis at the southern border but that “there are different points of view about how to address that, and all of that will be dealt with publicly on the floor before we have the vote.”
Senators said they had a “serious” discussion with Pence, during which the vice president focused on trying to explain the rationale for the emergency declaration and mollify concerns among rank-and-file Republicans that the reprogramming of funds could hurt their local military installations. The vice president made the case that the wall was the issue Trump ran on in his campaign and also argued that military construction projects would not be jeopardized, because that money could be replaced, according to the official briefed on the lunch.
“Let me tell you this, if it’s military construction projects, we’ll backfill that so fast, as soon as we get there,” said Richard C. Shelby (R-Ala.), chairman of the Senate Appropriations Committee, predicting “no trouble” in providing new funds for the projects. “You can rest assured that issue won’t stay alive long.”
Shelby dismissed any concerns about where money would be found to replenish the military accounts.
“From money! Where do we fill everything else? Because it would be one of the highest priorities,” Shelby said.
A White House fact sheet Tuesday said the military construction funds would be tapped under the national emergency declaration only after the appropriated money and other funding sources had been exhausted, a sequencing that some Republicans pointed to as alleviating some of their concerns. The military construction funds would come from projects such as military housing and a variety of improvements at bases around the country and internationally, in situations where money has been appropriated by Congress but not yet committed in work contracts.
Many Republicans who had argued against executive overreach when Obama was in office said Tuesday that the situation is different now, since Trump drew his authority to declare a national emergency from a federal law that also gives Congress the power to overturn his action.
One GOP lawmaker, however, offered a dissenting view.
“I’ll be real honest, if Obama had done this, Republicans would be going nuts. That’s just the reality,” said Rep. Mike Simpson (R-Idaho). “Even if Obama had the authority to do it, just like I think President Trump does.”
Nonetheless, Simpson voted with the president and against the disapproval resolution, saying the National Emergencies Act gave Trump the authority to act as he did. Simpson did say the law itself should be revisited.
The disapproval resolution consists of only one paragraph, which says the national emergency Trump declared “is hereby terminated.”
The White House issued a formal veto threat Tuesday that read in part: “The current situation at the Southern Border presents a humanitarian and security crisis that threatens core national security interests and constitutes a national emergency.”
Democrats dispute GOP claims of a border crisis, noting that border apprehensions are at some of their lowest levels in decades, and arguing that most of the drugs that cross into the United States from Mexico — an issue often raised by Trump and Republicans — come in via formal ports of entry as opposed to illegal crossings.
During a hearing Tuesday morning at the Senate Armed Services Committee, Air Force Gen. Terrence O’Shaughnessy, who heads the U.S. Northern Command and the North American Aerospace Command, dodged questions about whether he agreed with Trump that the situation at the southern border amountes to a national emergency.
“The president has declared a national emergency on the border,” O’Shaughnessy replied when asked by senators.
O’Shaughnessy said he was following the instructions transmitted to him by executive order. He deferred to the Department of Homeland Security on the characterization of the situation, noting that the civilian migrants crossing the southern border do not constitute a military threat.
Asked whether he recommended an emergency declaration, O’Shaughnessy said: “I did not directly recommend either way.”
Of the 13 House Republicans who opposed Trump, four are conservatives with strong libertarian leanings: Reps. Justin Amash (Mich.), Dusty Johnson (S.D.), Thomas Massie (Ky.) and F. James Sensenbrenner Jr. (Wis.). The other nine are more-moderate Republicans, and some represent swing districts where Trump is not popular: Reps. Jamie Herrera Beutler (Wash.), Brian Fitzpatrick (Pa.), Mike Gallagher (Wis.), Will Hurd (Tex.), Elise Stefanik (N.Y.), Francis Rooney (Fla.), Greg Walden (Ore.), Fred Upton (Mich.) and Cathy McMorris Rodgers (Wash.), a former member of House GOP leadership.
Paul Sonne and Mike DeBonis contributed to this report.