For weeks Republicans like Mike Lee have been struggling with what to do about Trump’s declaration of emergency at the border. It’s at least arguably constitutional; Congress did grant the president certain powers in the National Emergencies Act. But the idea of the president fiddling with appropriations, a power that’s supposed to belong to the legislature, obviously doesn’t sit right.
So Lee and a few others have been toying with a compromise: What if they rubber-stamp Trump’s emergency declaration this time but also amend the National Emergencies Act (NEA) to prevent this situation from arising again in the future? Specifically, instead of allowing the president to declare open-ended emergencies and forcing Congress to muster veto-proof majorities to end them, what if the law was changed so that any presidential emergency automatically expires within 30 (or 60 or 90, etc) days? Remember, the point of emergency executive power is supposedly to let the federal government address a crisis quickly, before Congress is able to convene and brainstorm a solution. Presumably 60 days or so is long enough.
The “amend the NEA” option means we’re now looking at three potential outcomes in this standoff between the House and Trump, with the Senate caught in the middle.
1. Full rebuke. The Senate passes Lee’s bill to change the NEA and (narrowly) passes Pelosi’s House resolution canceling Trump’s emergency decree at the border. The celebration is short-lived, though, as Trump vetoes both bills and neither chamber can muster the votes to override his vetoes.
2. No rebuke. The Senate passes Lee’s bill but rejects the House resolution. Centrist Republicans decide there’s no reason to support Pelosi’s bill now that they can support Lee’s alternative instead, ensuring that future crises like this won’t recur. An annoyed Pelosi retaliates by blocking Lee’s bill in the House. Result: Neither bill passes.
3. Compromise. The Senate GOP makes a deal with Trump: We’ll oppose the House resolution, sparing you from a rebuke on the current emergency, if and only if you agree to sign Lee’s amendment to the NEA limiting your powers going forward. Would Trump go for that? If so then this is the only option of the three that stands a chance of producing a bill that can become law. And for precisely that reason, maaaaaaaybe the GOP could get Pelosi to go along with it even if it means the House resolution is defeated in the process. If the choice is between the House legislation dying on Trump’s desk and Lee’s bill being signed into law, why would a Democrat not choose the latter in the interest of preventing future Trump-declared perpetual emergencies?
I don’t think Pelosi will go for it but Republicans are at least discussing the compromise option among themselves this afternoon:
[S]enators are seeking to persuade the administration to back changes to the National Emergencies Act, which they believe could give Republicans greater comfort in voting with Trump and against a resolution nullifying his emergency declaration later this week…
Many Senate Republicans have started to align behind Lee’s proposal, which would amend the National Emergencies Act of 1976 to say an emergency declaration would expire automatically after 30 days unless both chambers of Congress vote to approve it.
But the White House, in private, has been skeptical of the effort so far and is proposing some changes to it, according one of the people familiar with the discussions 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.
“I think there’s a hope that that could happen,” said Roy Blunt. Interestingly, one of the four Republicans who’s already announced that he’ll vote with Schumer to block Trump’s border emergency decree suddenly seems to be rethinking that as the compromise option gains momentum:
Did Pence change your mind about the emergency declaration?
“He didn’t have to change my mind,” Tillis says about his talk with the veep today.
Are you having second thoughts?
— Igor Bobic (@igorbobic) March 12, 2019
“They’re being beaten up right now. If you see anybody with blood dripping…they may be changing,” Rand Paul says of fellow GOP senators who came out publicly against Trump’s emergency declaration. Pence has met with several today.
— Igor Bobic (@igorbobic) March 12, 2019
According to The Hill, Tillis told them flat out that his vote on the House resolution would change if there’s a deal to amend the NEA. That would leave Schumer with just three Republicans in favor of the House resolution at the moment, Collins, Murkowski, and Paul (or is Paul wavering too now?), which would mean a 50/50 Senate with Mike Pence supplying the tiebreaking vote in Trump’s favor. There’s a chance, in other words, that Trump will win on the wall emergency, at least in Congress.
But here’s the weird thing. It’s unclear in my reading about this whether he’ll make his support for Lee’s bill contingent upon the House resolution being defeated or if he’s merely trying to hold down the number of Senate Republicans voting for it. The same story from The Hill that I just linked quotes John Thune as saying he expects Pelosi’s resolution to pass; all Trump might gain by compromising with Lee is a small Senate majority passing the House resolution (say, 51-52 votes) instead of an embarrassingly large-ish one (60 votes). Which seems like not such a great deal by the guy who wrote “The Art of the Deal.” If you’re going to support a bill that would limit your future emergency powers as president, at least demand total unity among your caucus on Pelosi’s bill as the price.
That raises another X factor: As far as I know, Pelosi hasn’t been asked about this. And right now seems like an inopportune moment to lobby her on having the Senate kill off the House bill and have the House pass a Republican-written amendment to the NEA instead. She’s catching flak from her own party for ruling out Trump’s impeachment yesterday; her agreeing to pass a bill authored by Mike Lee after the Senate has defeated her own caucus’s rebuke to Trump on the border emergency might destroy what’s left of her cred with leftists. At a minimum, I would think, Pelosi would insist that the Senate pass the House resolution — even with a narrow majority — as a price for her moving Lee’s bill in the House. And I’m sure she’d demand that her own caucus be given final input via a conference committee on what an amended NEA would look like. What if that happens and then Trump decides that he won’t sign the compromise bill? Lee’s bill might be a take-it-or-leave-it thing for the House. Which I’m sure is a dealbreaker for Pelosi.
Besides, why would Pelosi agree to limit prospective emergency powers by the executive if she’s not getting even a symbolic rebuke of Trump by the Senate this time in return? The only silver lining for Democrats in this fiasco is the prospect that they’ll get to abuse emergency powers for their own pet causes in the future if Trump gets away with it this time. Lee’s proposal, however, is to let Trump get away with it this time while limiting future abuses. Can’t imagine House Democrats signing off on that.
I also can’t imagine anyone trusting Trump to keep his word if he swears — scout’s honor! — that he’ll sign Lee’s NEA bill as long as Senate Republicans block the House resolution. Remember how McConnell was ready to pass a funding bill in December with, he thought, Trump’s support before Trump suddenly decided that he wanted a shutdown over the wall? POTUS shifts with the wind. Negotiating with him and expecting him to stand by commitments he’s made privately is a fool’s errand.
The wise thing to do if if if if Republicans and Democrats in Congress are serious about reining in emergency power is to unite behind Lee’s NEA bill (or some bipartisan version of it) and agree to table the House resolution canceling Trump’s emergency decree in return for Trump signing the NEA legislation. That’s the only thing that stands a chance of becoming law and Pelosi would still stand a solid chance of blocking Trump’s emergency declaration in court. But any Senate-written NEA bill would almost certainly die in the House — and maybe that’s the point from Republicans’ perspective. Maybe Lee’s bill isn’t being offered in good faith but merely as something that can pry enough centrist Republicans like Tillis away from supporting Pelosi’s resolution to prevent that resolution from passing the Senate. Then when Pelosi gets mad and declares Lee’s bill dead on arrival in the House, he and Trump and McConnell can shrug and say “Oh well.” And that’s the end of all of this business.
Anyway, the vote’s Thursday. And no, it looks like they can’t amend Pelosi’s resolution to water it down. They’re going to have to vote on it basically as-is.