Noah Rothman  Trump's national emergency standoff gives Senate Republicans the chance to send a clear message

The fight over Trump’s misuse of power isn’t over. But the number of conservative legislators who voted with their conscience is heartening.
Image: Donald TrumpMitch McConnell
President Donald Trump speaks as Senate Majority Leader Mitch McConnell of Ky. listens after a Senate Republican policy lunch on Capitol Hill on Jan. 9, 2018, in Washington.Evan Vucci / AP file
Get the Think newsletter.
SUBSCRIBE
By Noah Rothman, associate editor of COMMENTARY magazine

From its inception, President Donald Trump’s desired wall along the southern border with Mexico presented Republicans with a conflict of interests. To support it would be to abandon conservatism’s ideological mistrust of sprawling publicly funded works that invite corruption and waste and which will likely fail to achieve their stated objectives. To oppose it would sacrifice their party’s credibility as stewards of national security and sovereignty, risking the kind of voter backlash that won Trump the Republican presidential nomination in the first place.

Republicans navigated this conundrum for the first two years of Trump’s presidency by paying lip service to the wall but focusing on other more pressing matters related to immigration and border security. Polling on the wall has consistently shown that support for the project trails even Trump’s average job approval rating, suggesting that even many of his own supporters are not sold on the value of a physical barrier along the border. Congress is the most responsive branch to public concerns, and the signals it was sending to the White House about the unpopularity and unviability of a border wall were loud and clear. The president chose not to hear them.

The signals Congress was sending to the White House about the unpopularity and unviability of a border wall were loud and clear. The president chose not to hear them.

But by invoking his supposed presidential authority to appropriate funds independent of congressional authorization in a time of national crisis, Trump has made the GOP’s conflict far starker than it once was. No longer was the GOP weighing the merits of one undesirable political outcome against another. By clarifying the situation for Republicans, the president gravely miscalculated. On Thursday, the Senate voted 59 to 41 to override Trump's national emergency declaration. While 12 Republicans joined with Democrats in opposing the president, Trump has pledged to veto.

SIGN UP FOR THE THINK WEEKLY NEWSLETTER HERE

After weeks of equivocating, the president’s national emergency declaration on Feb. 15 set into motion a series of events might now regret. Under the National Emergencies Act, the House has the power to pass a resolution overriding the declaration. On February 26, the Democrat-led lower chamber of the legislature did just that, and by a resounding margin. And those who expected partisanship to prevail in the upper chamber were perhaps surprised to see Republicans mutiny against the president and Senate leadership.

Get the think newsletter.

Even before his national security powers were invoked, the prospect of a presidential declaration of emergency was met with trepidation and incredulity by a substantial number Senate Republicans. In varying degrees, Senators Lamar Alexander, Susan Collins, John Cornyn, Chuck Grassley, Rand Paul, Ron Johnson and Marco Rubio lamented the president’s decision and the deleterious blurring effect it would have on the separation of powers. In the days that followed the resolution, a critical mass of the GOP — enough members to carry the House-passed Democratic resolution opposing Trump’s move — came out against the president.

It’s much easier to be part of the chorus than it is to be the deciding vote on anything. And so, with the pressure off, rumors began swirling that an insurmountable number of Republicans were planning to abandon Trump. “I’m hearing there are at least 7 Republicans votes in the Senate to disapprove of the national emergency and maybe more than 10,” wrote National Review editor Rich Lowry. What seemed like a fantastical number of defections at the time turned out to be a low estimate.

Ahead of Thursday’s vote on the Democratic resolution, Senate Republicans did all they could to provide the president with a face-saving way out of the crisis he inaugurated. One stop-gap measure introduced by Sen. Mike Lee would have limited the length of a national emergency a president could declare to just 30 days, with extensions exclusively granted by Congress. It would also amend the National Emergencies Act to give Congress the authority to amend a presidential declaration during the legislature’s consideration period.

Not good enough, said Sen. Collins. “The issue before us isn’t affected by amending the law in the future, so it does not change my views,” she averred. In the end, all this effort was wasted. Late Wednesday, the president told Republicans that he would veto their compromise measure, forcing the GOP’s hand in the process. “We tried to cut a deal, the president didn’t appear interested,” Lee said. He added that he, too, would support the Democratic measure.

Even though the number of Republican votes against Trump’s maneuver fell short of a veto-proof majority, it has sent a powerful signal to the courts. The judiciary will be asked to determine whether the Congress has delegated to any president who utters the phrase “national emergency” the power to ignore its authority on domestic appropriations. It severely undermines the executive branch’s rationale now that Congress has explicitly said, “absolutely not.”

But Congress should not rely on the judicial branch to absolve it of its responsibilities. Montesquieu’s foundational theory of separated powers, upon which the Madisonian scheme is built, relies on the assumption that each branch of government would be a jealous steward of its own power, transcending even parochial and partisan alliances. With increasing frequency, that assumption is falling as legislators derive more power and influence from being notorious pundits than respected lawmakers. If Congress is willing to cede its core function to the executive branch — the sole authority to apportion taxpayer funds to discrete considerations — what’s the point of having a Congress at all?

If Congress is willing to cede its core function to the executive branch what’s the point of having a Congress at all?

More portentously, Democrats did everything in their power to make this decision an easy one for squeamish Republicans. Few among them are even being coy about their intention to leverage the precedent Trump is setting to enact their own policy preferences. “Want to talk about a national emergency?” House Speaker Nancy Pelosi asked. “[T]he epidemic of gun violence in America. That’s a national emergency.” Sen. Chris Murphy was similarly cryptic. “Betcha you could build a single payer health care system faster than a wall with Mexico,” he wrote of Trump’s national emergency declaration. “Just sayin.”

And what about the draconian anti-market policies that constitute Democratic proposals to mitigate climate change? “If Trump can call a national emergency for a fake crisis at the border, then surely Congress should call a national emergency for a REAL crisis,” read a statement from Rep. Earl Blumenauer in which he urged his colleagues to support a resolution declaring “the climate crisis” a “national emergency.”

These displays of civic impropriety should put the fear of God into the GOP. They will greatly miss the minority privileges they are surrendering when Democrats recapture the levers of government.

When it comes to the wall, Donald Trump has played a great hand terribly. He had a compliant if not especially willing Congress for the first two years of his presidency. At almost any point, he could have called lawmakers’ bluff and forced them to vote on his signature policy proposal, but he deferred. Republicans never wanted to choose between their conservative values and their support for Trump, and they most certainly did not want to expropriate private property for the construction of a redundant boondoggle in the desert with dubious prospects for success. But that choice, hard as it would have been, was always more ambiguous than the one before the GOP today.

The number of conservative legislators who broke with Trump in service to their institution and their values is heartening.

By raising the stakes of the GOP’s internal conflict with a declaration of emergency, Trump unwittingly made the decision for conscience-driven Republicans an easy one. The president is now asking them not to choose between two political considerations but between the fleeting political imperative of supporting the president and their duty to posterity in service to the Constitution.

The fight over Trump’s misuse of power isn’t over, and far too many Republicans put their electoral prospects ahead of first principles in this fight. But the number of conservative legislators who broke with Trump in service to their institution and their values is heartening. The number was more than enough to put Trump on the defensive. And the blow they struck for constitutional propriety, the resonance of which will have broad and wide-ranging implications.