Here’s a good question on Presidents Day — what is the limit of presidential power? In terms of national emergencies, Congress set the limit 43 years ago, and they’re living to regret it now. As House Democrats introduce legislation to reverse Donald Trump’s emergency declaration and stop him from reshuffling Pentagon funds to build a border wall, White House adviser Stephen Miller declared on Fox News Sunday that it would meet an immediate veto:
WALLACE: OK, final question. If both the House and the Senate approve a resolution of disapproval, which they’re allowed to — it’s specifically called for in the National Emergencies Act and if they pass it in the Senate, it would be with bipartisan support, because there’s Republican control. If they pass a resolution of disapproval, will the president veto that, which would be the first veto of his presidency?
MILLER: Well, obviously, the president is going to protect his national emergency declaration, Chris. And I know that we’re out of time, but I again want to make this point. There’s not threat —
WALLACE: So, yes, he would veto?
MILLER: He’s going to protect his national emergency declaration guaranteed. But the fact that they’re even talking about a resolution of disapproval show you this is a statutory issue and a statutory delegation that Congress made. But again, I want to make this point. This is a deep intellectual problem that is plaguing this city which is that we’ve had thousands of Americans die year after year after year because of threats crossing our southern border. We have families and communities that are left unprotected and undefended. We have international narco terrorist organizations. This is a threat in our country, not overseas. Not in Belarus. Not in Zimbabwe. Not in Afghanistan or Syria or Iraq but right here. And if the president can’t defend this country, then he cannot fulfill this constitutional oath of office.
Democrats promised to use the rejection mechanism in the 1976 National Emergencies Act weeks before Trump decided to declare the emergency. Passage in the Democrat-controlled House seems inevitable, but … will it pass in the Republican-controlled Senate? And will it get a veto-proof majority in either chamber? Sen. Tammy Duckworth (D-IL) says yes to the first question, but hedges mightily on the second:
Sen. Tammy Duckworth told @martharaddatz she believes the Senate has enough votes for a joint resolution to terminate Pres. Trump's national emergency declaration: "Now whether we have enough for an overriding veto, now that's a different story." https://t.co/dvtYEOHtmO pic.twitter.com/65FwOT7vmb
— ABC News (@ABC) February 18, 2019
Sen. Tammy Duckworth, D-Ill., said Sunday on “This Week” that she believes there is enough support in Congress to put forth a resolution to terminate President Donald Trump’s national emergency at the Southern border.
“Frankly, I think there’s enough people in the Senate who are concerned that what he’s doing is robbing from the military and the [Department of Defense] to go and build this wall,” Duckworth told “This Week” co-anchor Martha Raddatz.
But Duckworth added she isn’t certain there are enough votes in Congress to override an expected presidential veto of such a resolution.
Narrator: There weren’t. It’s possible that Duckworth’s right about getting enough Republican votes in the Senate to pass the House’s rejection resolution. A handful of Senate Republicans have already announced opposition to the idea on the basis that it’s unnecessary, and more might be inclined to defend Congress’ constitutional privilege and its power of the purse from the executive. In order to override the inevitable veto, however, Duckworth would need 20 Senate Republicans and several dozen House Republicans on board to block the border wall, and that’s not going to happen.
The passage of the original rejection might make it tougher for the Trump administration to sustain the idea that a true emergency exists, an argument that lower courts will almost certainly review. Appellate courts are more likely to reject that approach as an inherently political issue and focus on authority and precedent. Democrats insist that this is an unprecedented use of emergency powers to hijack Congress’ appropriation authority, but the problem with that argument is that Congress explicitly granted the executive that authority in the first place. It only requires that the president keep track of expenditures outside of previous congressional appropriations and report them back to Congress every six months.
Will courts side with those suing to enjoin the declaration? Plaintiffs might have a tough time sustaining the argument, given that we’re currently living under thirty-two states of emergency, including this one. Good luck with the abuse-of-power argument in court, people.