McConnell: Maybe it *is* time to rethink the National Emergencies Act

“If the 116th Congress regrets the degree of flexibility that the 94th Congress gave the executive,” Mitch McConnell declared late last week, “the 116th Congress can do something about it.” With Donald Trump’s emergency declaration over border security surviving through a presidential veto, Senate Republicans have quietly begun work to put an end to any similar use of the National Emergencies Act, The Hill reports.

Better late than never, it seems:

“It’s an institutional issue, it’s a congressional authorities issue. We have the power of the purse,” said Sen. Rob Portman (R-Ohio). “Under the National Emergencies Act, there was too much latitude that was given away … and we need to pull that back some and let it be used for legitimate national security purposes.”

Sen. Marco Rubio (R-Fla.) added that there is “unanimity” in the GOP caucus about making changes to the law in the wake of the fight over Trump’s emergency declaration to construct the U.S.-Mexico border wall.

Majority Leader Mitch McConnell (R-Ky.) has tapped Sen. Ron Johnson (R-Wis.) to craft legislation in the Senate Homeland Security and Governmental Affairs Committee that could win the 60 votes needed for a bill to defeat a filibuster and ultimately pass the Senate.

The existence of the NEA is inexplicable anyway. Winston Churchill’s observation that “bad kings make for good law” was utterly confounded in 1976 when a Democrat-controlled Congress passed this power usurpation to a Republican president. Gerald Ford had assumed the office two years earlier after Richard Nixon resigned in disgrace for having abused the power of his office in numerous ways. One would have assumed under those circumstances that the Congress elected after that fiasco would have special care in preventing further executive abuse, but perhaps only if one was entirely unfamiliar with the impulse of Congress to avoid doing any of its own work.

Forty-three years and sixty emergency declarations later, Congress finally felt the sting of its own folly. This new effort is a tacit recognition that Trump is likely to prevail in court, thanks to a statute with literally no limiting principles on what constitutes an emergency and almost no limit on what a president can do with one. If members of Congress believed the courts would let them off the hook, you can bet your bottom dollar that they’d still leave the NEA in place as it is.

The bill should be repealed in its entirety rather than modified for more control. There is almost no need for Congress to surrender its authority for more than a few hours, as that is all it would take to recall the chambers back into session to deal with any emergent need to recast spending. Even the 90- or 60-day limits currently under discussion are unnecessary. When was the last time Congress was out of session for 60 days? Or for that matter, even 30 continuous days outside of the self-indulgent August recesses?

Congress won’t get rid of it altogether, so perhaps the best we can hope for is the 30-day window. Now that Trump’s emergency declaration is in the hands of the courts, it shouldn’t be too difficult to get a bipartisan consensus on fixing most of what’s wrong with the NEA. Democrats can still worry what use Trump can still make of the law over the next 22 months, or perhaps six years if Trump wins re-election. Republicans won’t touch the previous declarations — thirty-two of which remain in effect, by the way — which might annoy Democrats. However, they’ll know that Trump would veto anything that would apply ex post facto to his declaration, and that most Senate Republicans would side with him in doing so, just as they will if the House manages to win an override vote this time.

Democrats should console themselves with Churchill’s observation. Of course, if they hadn’t ignored it in the first place ….