Lots of “breaking news” updates popped up from the media this morning on Twitter about a development we all saw coming for a week. Nancy Pelosi scheduled a vote on congressional disapproval of Donald Trump’s emergency declaration for Tuesday. Politico, NPR, ABC, and even the Women’s March all attached “breaking” tags to the news.
At least Bloomberg’s Nancy Ognanovich only prefaced it with a more accurate “NEWS.” Pelosi laid out the order of business on the bill, and concluded her call with reporters by declaring that Trump can’t act as though he’s “above the law”:
NEWS: #Pelosi says the resolution aimed at blocking #Trump #emergency move will go to House #Rules on Monday night and will be on the floor Tuesday. The House will vote on matter Tuesday, she says. `The president is not above the law in any way,' #Speaker tells reporters.
— Nancy Ognanovich (@NOgnanovich) February 22, 2019
“Above the law”? That’s not the problem here, and Pelosi knows it. The issue here is that Trump acted within the law Congress passed in 1976, the National Emergencies Act, that gave presidents the authority to do exactly what Trump has done here. Part of that law allows Congress to revoke the declaration by passing a bill to do so, which as most media outlets state will likely sail through the House, at the very least on a party-line vote. It might even pass the Senate, too:
Rep. Joaquin Castro (D-Tex.), who authored the one-page resolution, said he had gathered at least 226 co-sponsors for his measure — more than enough to guarantee House passage. But only one Republican, Rep. Justin Amash of Michigan, has joined the bill so far. …
While House passage is all but assured, it is unclear whether a disapproval resolution can pass the Senate, where Republicans enjoy a 53-to-47 majority. Only one Senate Republican publicly offered support for a disapproval measure, Sen. Susan Collins (R-Maine), though several other GOP senators have signaled discomfort with Trump’s declaration.
Pelosi and other Democrats have tied to couch their arguments against the emergency declaration in constitutional and institutional terms, arguing that Congress cannot stand idly by while a president usurps the legislative branch’s powers — hoping to win over conservatives who have been critical of the expansive use of executive powers in the federal government.
“We have a separation of powers in our country,” Pelosi said. “We battled against a monarchy; we did not intend to establish one in our country.”
Not to be too harsh, but that’s horsecrap. Not only did Congress clearly intend to pass this buck to the president, they have not once in 43 years ever bothered to follow up on emergency decrees, nor to limit the power they hand to presidents. I covered that in my column at The Week and have noted it multiple times here this week, but it’s worth making the argument again briefly:
Until now, Congress not only hasn’t objected to the use the NEA for purposes that could easily have been addressed under normal conditions — such as applying sanctions in Belarus in 2006 — it hasn’t had much interest in using its authority to close out emergencies and restore its own standing. …
- Regulation of the Anchorage and Movement of Vessels with respect to Cuba (1997)
- Prohibiting Certain Transactions with Respect to the Development of Iranian Petroleum Resources (1995)
- Blocking Sudanese Government Property and Prohibiting Transactions with Sudan (1997)
- Blocking Property of Persons Who Threaten International Stabilization Efforts in the Western Balkans (2001)
In all, we were living in 31 concurrent states of emergency even before this latest declaration. Of the 28 emergencies no longer in effect, not a single one was revoked by an act of Congress. Successive Congresses have been content to let presidents decide when to surrender their increased authority … or let them keep it. Why? Because members of Congress find it easier to punt this responsibility to the executive branch than roll up their own sleeves to deal with mainly mundane issues.
The NEA is an abomination that should never have passed in the first place. Congress should have taken an interest in it long before now by demanding an end to the 31 emergencies still in place. They’re only interested now because Trump and his attorneys read the law carefully and discovered the authoritarianism Congress fully authorized within it.
By the way, this bill is doomed anyway. Being a bill, even a privileged resolution that avoids the filibuster and must get a Senate vote, it’s subject to a presidential veto. Good luck storming that castle, The Hill warns Pelosi, and don’t even count on it getting that far:
Across the Capitol, the dynamics are different. Senators represent entire states, not smaller districts gerrymandered into partisan enclaves. And there’s plenty of pressure on some GOP senators to support the disapproval resolution when it’s sent over by the House.
The Hill identified 10 GOP senators who could break with Trump on the issue, including Sens. Lisa Murkowski (Alaska), Thom Tillis (N.C.), Cory Gardner (Colo.) and Mitt Romney (Utah).
But it’s far from clear the measure stopping Trump’s emergency declaration will clear the Senate.
So far, the only Republican in Congress vowing to join Democrats is centrist Sen. Susan Collins of Maine. She is expected to face a tough reelection in 2020 and has said she both supports a lawsuit challenging the president’s action and will vote for the Democratic-led resolution.
The disapproval resolution is deemed “privileged” under the National Emergencies Act of 1976, which both guarantees a vote in the Senate and precludes opponents from blocking it with a filibuster. That means Senate Democrats, who are expected to stand together, will need to win support from at least three additional Republicans to send the resolution to Trump, who has vowed a swift veto. Neither chamber is expected to reach the two-thirds majority threshold to override a veto.
If Pelosi’s serious about congressional prerogative, then she should lead an effort to repeal or greatly restrict the NEA from this point forward. If she doesn’t, it will demonstrate that Pelosi’s not worried about presidents being “above the law” … only those presidents she dislikes.