The first rule of First Veto Club is not to talk about why you joined First Veto Club. And the second rule of First Veto Club is … well, you get the idea. The White House hopes Senate Republicans get the idea too, as it prepares for Trump’s first exercise of the presidential power to nullify a nullification:
The White House told Senate Republicans on Monday to “keep their powder dry” ahead of a vote to nullify President Trump’s declaration of a national emergency at the U.S.-Mexico border as the administration worked to limit defections on a measure rebuking the president.
The message was delivered by Zach Parkinson, White House deputy director of government communications, in a meeting Monday morning with Senate Republican communications staffers, according to two people who attended the meeting.
It came as Senate Majority Leader Mitch McConnell (R-Ky.) predicted that the resolution to overturn Trump’s emergency declaration would pass in the Republican-led Senate — but not survive a veto. Over the weekend, Sen. Rand Paul (R-Ky.) became the fourth Republican to announce he would vote for the disapproval resolution, ensuring its passage with unified Democratic support.
But the White House is eager to contain further defections from members of Trump’s party on his signature issue of building a wall along the southern border.
“Keep your powder dry” is clearly a euphemism for “keep your mouth shut.” Thus far it’s not working with GOP defectors on the emergency declaration, who have all gone public to explain why they’re balking at what they see as an abuse of executive power. One might think that the public statements of Paul and others are intended to get Trump to back down and sign off on the nullification, or withdraw the emergency declaration before it gets that far. If that’s the intent, the “keep [your] powder dry” response is a sure indication that no such retreat will be forthcoming. It’s a warning to dissident Republicans not to get out too far on that limb lest they be on the wrong side of it when it gets cut off.
Rand Paul explained his decision to throw in with the Democratic nullification as a way to avoid charges of hypocrisy after his bitter criticism of Barack Obama for similar actions:
I would literally lose my political soul if I decided to treat President Trump different than President Obama. (Although, I’ll note, not one Democrat criticized Obama for his executive orders.)
I support President Trump. I supported his fight to get funding for the wall from Republicans and Democrats alike, and I share his view that we need more and better border security.
However, I cannot support the use of emergency powers to get more funding, so I will be voting to disapprove of his declaration when it comes before the Senate.
Every single Republican I know decried President Obama’s use of executive power to legislate. We were right then. But the only way to be an honest officeholder is to stand up for the same principles no matter who is in power.
Paul’s explanation ignores one key difference between the two, however. When Obama created DACA and DAPA out of thin air, it was absent any specific legislative grant of authority. Trump’s emergency declaration falls squarely within the terrible National Emergencies Act of 1976, a bizarre statute that gives Trump all of the authority he needs to accomplish his mission along with no restrictions at all on what constitutes an “emergency.” This isn’t a case of abuse of power or using executive power to legislate — it’s a case of a Congress that likes to avoid tough votes finally getting hoist by its own petard. A petard, one should remember, that Congress has blithely ignored in 59 other uses, 31 of which remain in effect to this day.
The statute also gives Congress the opportunity to nullify such declarations, an authority they have not once used in 43 years despite endless “emergencies” declared by other presidents. That will certainly happen now that Paul and other Senate Republicans have pledged to support the Democrats’ bill. However, there are still nothing like the 20 defections in the Senate needed to override a Trump veto, which means that the emergency declaration will remain in place until Trump says otherwise.
Paul, Lamar Alexander, and others would be better advised to repeal or greatly amend the National Emergencies Act instead. When Congress can be recalled within hours in those brief periods where both chambers are not already in session, there’s not much need for surrendering these authorities to the president at all. If they do see some need for presidential emergency authority, then emergencies should be (a) strictly defined and (b) time limited to the time needed by Congress to deal with any severely acute crisis in legislation. Some have proposed a 60-day period in a similar vein as the War Powers Act (which has its own problems), but two weeks would be more appropriate.
Had Paul and others paid attention to the NEA and its surrender to the executive before now, it might have prevented Trump’s use of the NEA to bypass Congress in this instance. It’s not too late to act now out of principle rather than out of spite. More importantly, it will serve as evidence that Congress actually gives a damn about its constitutional prerogatives rather than only complain when a president they don’t like makes use of their surrender of them.