When Majority Leader Mitch McConnell made a twofold announcement Thursday that President Donald Trump would approve the budget proposal and declare a national emergency at the southern border, Washington legislators Rep. Cathy McMorris Rodgers and Sen. Patty Murray issued statements that this could establish a troubling precedent.
“While I share President Trump’s concerns about the important need to secure our southern border and his frustrations with Democrats’ refusal to keep our country secure, this is not the right approach to achieve our shared goals,” said McMorris Rodgers, a Republican.
She added that Trump was “opening the door for any future president to act alone without Congressional approval,” and expressed concern that a future president, such as Sen. Elizabeth Warren or Sen. Bernie Sanders, could use this precedent to declare a national emergency for a “Green New Deal.”
Cornell Clayton, director of Washington State University’s Thomas S. Foley Institute for Public Policy and Public Service, was not surprised by McMorris Rodgers’ position.
“It’s a consistent position that most conservatives have taken,” Clayton said. “They’ve been very squeamish – in the eight years of the Obama administration, in particular – about the expansive use of executive branch power.”
He also said that it was less risky for House Republicans to oppose the declaration; the chamber will oppose it regardless, given the Democratic majority.
Democrat Murray said the situation at the border was a “manufactured crisis,” and lamented the president’s “un-American abuse of power,” though she said “Democrats and Republicans agree on the need to invest in responsible border security and tackle very real humanitarian issues.”
Republican Idaho Sen. Mike Crapo said in a statement that we need additional physical barriers at the border.
“I will work closely with my Senate colleagues and with the White House to learn the details of the President’s intentions and how they will be implemented,” he said.
For Clayton, the surprise was McConnell making the announcement rather than the White House, though he did see logic in the decision.
“I think he probably wanted to get out in front of it to get the Republicans in the Senate ready for it, so they would be prepared for statements, as they will certainly be asked about it right away,” Clayton said.
Clayton said he was also surprised by McConnell’s backing, but this could have been a compromise reached in exchange for Trump approving the budget proposal.
“The White House had to do something to placate their base and the conservative media who were very upset about the budget deal that was struck,” Clayton said. “He had to do something, and this is the more dramatic way to make a statement.”
The budget proposal allotted about $1.4 billion for border security, more than $4 billion shy of the $5.7 billion Trump requested.
Clayton did not think this national emergency declaration could clear the Senate, but said McConnell’s approval could shift the dynamics.
“I think it’s going to be a very interesting proposition, and there’s a number of conservative senators who are on record as saying they would be opposed to using emergency powers to do this,” Clayton said. “… I think it’s not a done deal in the Senate, and I think it will be a close vote.”
Even if the Senate chooses to challenge the emergency declaration, the legislative branch does not have veto powers, per the National Emergency Act. That means the president could still veto its decision. At this point, the chambers could nullify the president’s veto, but only with two-thirds vote in each.
“My guess is that there will be enough Republican support for the declaration of emergency to build a wall that they would sustain a presidential veto,” Clayton said.
Clayton said the emergency declaration would also be tested by the judicial branch. The National Emergency Act was drafted to provide an opportunity for Congress to respond to national emergencies, but because the act does not define what constitutes an emergency, it gives the president broad authority.
“That’s going to be an interpretive decision that the courts will have to make: Do they look at legislative intent or do they look at the language of the statute?” Clayton said.
If the courts decide the president has the right to declare the emergency, he will have to piece together statutes that will allow him to redirect funds for the emergency. These decisions will likely be challenged in court as well, Clayton said.
As far as the question as to whether the declaration is constitutional or not, Clayton said his guess is that decision would not be made in court, that it will be made on statutory grounds.
It is possible – as in the case of Trump’s travel ban – that a judge will issue an injunction suspending action on the emergency until the courts can make a decision, but Clayton said that’s not a foregone conclusion. The ultimate question – how courts will rule on these statutory challenges – is even foggier.
“I would say at the Supreme Court level, you have a number of justices who take a very expansive view of executive power, both constitutionally and under statutes,” Clayton said. “That includes both of President Trump’s nominees. (Brett) Kavanaugh, in particular, has very expansive views of executive branch power.”
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