Oh? What did you have in mind, senator?
My initial assessment is that what Pres. Trump announced is legal. Whether or not it should be legal is a different matter. Congress has been ceding far too much power to the exec. branch for decades. We should use this moment as an opportunity to start taking that power back.
— Mike Lee (@SenMikeLee) February 15, 2019
Lee’s belief that Trump is acting legally stems from the National Emergencies Act, I assume. Congress granted the president the power to declare emergencies. Many of Trump’s predecessors have used that power. As a threshold matter, today’s decree is lawful.
But is it legal in context? Another small-government devotee says no:
A national emergency declaration for a non-emergency is void. A prerequisite for declaring an emergency is that the situation requires immediate action and Congress does not have an opportunity to act. @POTUS @realDonaldTrump is attempting to circumvent our constitutional system.
— Justin Amash (@justinamash) February 15, 2019
Even if you side with Lee, you face the question of whether Congress can lawfully grant the president use of a power that’s assigned to the legislature by Article I of the Constitution. If only Congress can appropriate funds, how can a simple statute like the NEA share that power with the executive by letting him reprogram Pentagon money for other purposes?
Those are knotty constitutional questions. Rather than roll the dice by letting a court decide, Lee wants to assert some control over the outcome by having Congress take up the matter. I’m guessing that effort would start with clarifying what does and doesn’t count as an “emergency” for purposes of the NEA. An emergency can’t be whatever the president says it is or else the statute is an invitation to power-grabs. Presumably a revised statute will include more objective criteria that a judge can look at — whether the emergency declaration addresses a very recent development, whether Congress is prevented logistically from addressing that development with the immediacy it requires, and so on. They could impose subject-matter limits on the power (although it’s easy for a president to justify virtually anything in terms of national security) and time limits, such as having a declared emergency expire automatically in 14 days unless Congress has acted to extend it.
If Lee’s serious about cleaning up loose powers for the executive, though, he has more to deal with it than just the NEA. This Atlantic piece describing all of the different potential emergency authorities a president can invoke is hair-raising in its breadth. The author’s worst-case scenario, a Resistance fever dream in which Trump freaks out over sagging poll numbers and concocts a false-flag Iranian plot to meddle in the 2020 election, illustrates the scope:
Proclaiming a threat of war, Trump invokes Section 706 of the Communications Act to assume government control over internet traffic inside the United States, in order to prevent the spread of Iranian disinformation and propaganda. He also declares a national emergency under IEEPA, authorizing the Treasury Department to freeze the assets of any person or organization suspected of supporting Iran’s activities against the United States. Wielding the authority conferred by these laws, the government shuts down several left-leaning websites and domestic civil-society organizations, based on government determinations (classified, of course) that they are subject to Iranian influence. These include websites and organizations that are focused on getting out the vote…
Protests erupt. On Twitter, Trump calls the protesters traitors and suggests (in capital letters) that they could use a good beating. When counterprotesters oblige, Trump blames the original protesters for sparking the violent confrontations and deploys the Insurrection Act to federalize the National Guard in several states. Using the Presidential Alert system first tested in October 2018, the president sends a text message to every American’s cellphone, warning that there is “a risk of violence at polling stations” and that “troops will be deployed as necessary” to keep order. Some members of opposition groups are frightened into staying home on Election Day; other people simply can’t find accurate information online about voting.
I omitted the part where evil Brett Kavanaugh decides that Iranian propaganda isn’t covered by the First Amendment and that the feds can seize Americans’ assets without a warrant to counter a national security threat. You can laugh at the author’s paranoia — is a guy who couldn’t figure out how to get wall money while he had total control of government really a threat to hatch an ingenious Reichstag Fire plot? — while recognizing the truth of the underlying point, that a president with bad intentions would have lots of legal authority under current law to act on them. Time to clean that up, perhaps.
Now, tell me: Besides Lee and Rand Paul, which Senate Republicans are onboard for an effort to reduce the power of a president from their own party, particularly with respect to immigration enforcement? Who’s gung ho to make it even harder for Trump to build the wall, knowing how Trump’s fans will react to that? Not this guy, who’s never met a national-security executive action he didn’t like:
— Lindsey Graham (@LindseyGrahamSC) February 14, 2019
My best guess yesterday was that there’ll be 10 or so Republican votes in the Senate to rescind Trump’s new emergency decree once that resolution hits the floor. (There were 11 opposing yesterday’s immigration bill.) That’s more than enough to pass the resolution by simple majority but not nearly enough to override an inevitable Trump veto. Naturally Trump would also veto any attempt by Lee or others to limit his emergency powers more broadly; I doubt there’d be any greater appetite among Senate GOPers to override that veto. Republican senators fear Trump’s base and, to all appearances, Trump’s base likes the idea of expansive presidential power so long as it’s wielded by a Republican. So how does Lee get this effort off the ground? My guess is that most of his colleagues on the right won’t even want to debate it, believing that nothing will come of it in the end except pissing off MAGA Nation gratuitously.