Now that President Trump has officially declared his plans to declare a national emergency to authorize an additional $7 billion for his promised border wall, political observers will be waiting to see what Democrats and Republicans in Congress do next to try and block the funding. Democrats in both the House and the Senate unanimously oppose the national emergency measure, and what’s probably more surprising, a number of Senate Republicans have also expressed concerns with the plan.
So, what – if anything – can be done to stop this executive action by the president?
The New York Times has offered a brief guide to what will likely happen next, considering that several House Democrats (including Alexandria Ocasio-Cortez) have already declared their plans to try and stop the president.
The upshot is that Congressional Democrats have two avenues that they can pursue: One in Congress, and one in the courts.
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Can Congress stop Trump from declaring an emergency? (short answer: maybe so, but they would need the support of enough Senate Republicans to give them a supermajority in both chambers)
No, Congress does not have the power to stop the president from declaring a national emergency. But when lawmakers granted the president emergency powers in the first place, they built a check into the law.
Under the National Emergencies Act, the House and the Senate can take up what is called a joint resolution of termination to end the emergency status if they believe the president is acting irresponsibly or the threat has dissipated. Representative Joaquin Castro, Democrat of Texas and the head of the Congressional Hispanic Caucus, said late Thursday that he was ready to introduce such a resolution if Mr. Trump followed through. With a comfortable majority in the chamber, Democrats will most likely pass it or a similarly worded resolution.
“I will fully support the enactment of a joint resolution to terminate the president’s emergency declaration, in accordance with the process described in the National Emergencies Act, and intend to pursue all other available legal options,” said Representative Jerrold Nadler of New York, the chairman of the Judiciary Committee.
To keep a president’s party from bottling such a measure up, the law says that if one chamber passes such a resolution, the other one must bring it up for a vote within 18 days. Though Democrats are in the minority in the Senate, they would need only a handful of Republicans to join them to pass the resolution there and send it to Mr. Trump’s desk. It is easy to imagine a half-dozen or more Republican senators joining Democrats out of concern for the precedent that Mr. Trump’s declaration will set.
What would Trump do next?
As with any other bill that comes to the president’s desk, Mr. Trump can veto a joint congressional resolution terminating the national emergency, as long as it has not passed with supermajorities in both the House and the Senate.
Congress did not originally intend to give the president this recourse when it enacted the law during the post-Watergate reform era that has governed how and when presidents may invoke emergency-power statutes.
But the Supreme Court struck down what it calls legislative vetoes in 1983, ruling that for a congressional act to take legal effect, it must be presented to the president for signature or veto. Because it takes two-thirds of both chambers to override a veto, the ruling made it substantially harder for Congress to stop a president’s declaration.
How strong is opposition to a declaration in the House and the Senate? (short answer: It’s unlikely that Dems can win enough votes to actually end the national emergency declaration):
This is the crucial question. Half a dozen or so Republicans made their disapproval of an emergency declaration clear on Thursday.
“I don’t believe that the National Emergencies Act contemplated a president repurposing billions of dollars outside the normal appropriations process,” said Senator Susan Collins, Republican of Maine. “I also believe it will be challenged in court and is of dubious constitutionality.”
Senator Rand Paul, Republican of Kentucky and an ally to the president on other issues, said a national emergency declaration of this sort ran counter to the separation of powers outlined in the Constitution. Senator Patrick J. Toomey, Republican of Pennsylvania, agreed.
“My view is that this is better to be resolved through the legislative process,” he said.
Still, it is highly unlikely that Democrats can pick up enough Republican supporters in the House or the Senate to override Mr. Trump’s likely veto. The best case for the president’s opponents is that they show deep fissures among Republicans over the wall.
They could also try to build bipartisan support for legislation preventing Mr. Trump from drawing money for the wall from funds allocated by Congress for disaster relief.
Could Congress sue? (short answer: Dems will almost certainly try):
Here Democrats appear to have two choices. The House could either support a lawsuit challenging the emergency declaration brought by a third party or file a suit of its own.
There are questions about the House’s legal standing if it were to try to sue on its own, and House leaders and their lawyers will have to decide if it is worth risking filing suit themselves only to be dismissed by a judge for lack of standing. Regardless, a legal challenge is likely to tie up Mr. Trump’s efforts in court for an extended period of time.
While another shutdown has been averted thanks to Trump’s decision to sign the border funding compromise, how this plays out could create problems further down the line (keep in mind, Congress and Trump must cooperate to raise the debt ceiling over the summer, and this won’t be the last time that Congress and Trump will need to strike a compromise to fund the government).