In the wake of President Donald Trump’s declaration of a national emergency, most immediate attention has focused on the many lawsuits being filed to challenge its legality. In addition, the House of Representatives is preparing to vote on a resolution that could terminate the president’s declaration.
Both of these moves are important, but the ultimate fate of his effort likely will be decided back in the appropriations process.
Readily Disprovable Factual Assertions
As many have noted, President Trump badly undercut the legal defense of his declaration by admitting that the border situation did not require an emergency declaration. His heavy reliance on readily disprovable factual assertions also likely will cause even sympathetic judges difficulty in deferring to him.
The president has admitted that he is likely to lose in the lower courts, and his statements should make it difficult to persuade the U.S. Supreme Court to issue an emergency stay of an injunction against his declaration. The court is highly unlikely to hear such a case this term, which would push any final resolution of the legal battles into the new fiscal year that starts Oct. 1.
The Democratic-controlled House likely will pass a joint resolution seeking to terminate the emergency declaration. Once it does, Section 202 of the National Emergencies Act is likely to force the Republican-led Senate to vote on a similar resolution.
Vote Is Required
Although Senate Majority Leader Mitch McConnell (R-Ky.) skillfully shielded Senate Republicans from having to take awkward votes during the recent government shutdown, he likely will not be able to do so this time. Section 202 requires that the joint resolution be brought to a vote and prohibits filibusters.
Congressional Republicans might vote in lock-step with Trump in support of his emergency declaration, but some may be tempted to defect. The emergency declaration does not magically produce new money to build the wall: it simply envisions transferring money from projects Congress has chosen to fund into construction of the border wall.
With Congress operating under strict budgetary caps, these projects would not have been funded if they did not promise real benefits for real people. Republican members of Congress whose constituents or donors benefit from one of these projects may have trouble voting to ratify its cancellation. Other Republicans may worry that failing to vote to terminate President Trump’s declaration of an emergency would hamper future efforts to override Democratic presidents’ declarations.
Even if enough Republicans support the joint resolution terminating the emergency declaration for it to pass Congress, President Trump surely would veto such a measure. It seems unlikely that enough House and Senate Republicans would be prepared to override such a veto.
A resolution terminating the emergency declaration, however, is not Congress’s most powerful potential response. Because the Constitution prohibits any president from drawing funds from the Treasury without a congressional appropriation, Congress could simply stop appropriating money for the accounts that the President is draining to pay for the border wall. This would permanently kill the various projects whose funding Trump is diverting.
More likely, Congress will include language in the next round of appropriations bills prohibiting transfers from these projects to build the border wall. Republican proponents of the threatened projects may well go along if the alternative is that those projects are defunded completely. Congress could even rescind the appropriations that Trump has sought to divert to wall construction.
When the new fiscal year begins Oct. 1, 2019, this could produce the same kind of confrontation we just saw this winter. If the president refuses to sign appropriations bills that do not fund the border wall and that prevent him from diverting other funds to do so, he will have a choice between postponing construction of the wall and shutting down the government again.
With barely 13 months to go before the 2020 elections, a second shutdown in less than a year could entail serious political risks.
The president may be able to minimize Republican defections if he treads cautiously in what programs he raids for border wall funding: his declaration was quite vague on that subject.
But if he avoids badly damaging projects with important Republican constituencies, he may not have enough money for more than token efforts to build the wall. How this would play with his constituents is unclear.
Cementing a Legacy
A far better approach would be to remove the costly, ineffective, and environmentally ruinous border wall from the pedestal it has wholly failed to earn. We could accomplish far more with bipartisan negotiations on improving border security and addressing our broader immigration problems.
If President Trump is seeking a deal to cement his legacy, that would be it.
President Richard Nixon’s strident anti-communism made him the only one who could lead a thaw with China. President Ronald Reagan’s tax-cutting credibility allowed him to pass sweeping tax simplification legislation in 1986. President Trump can secure a similar legacy by pushing past extremists’ demands to shepherd through bipartisan immigration reform.
David A. Super is Professor of Law at Georgetown University. He conducts research on administrative law, congressional procedure, and the federal budget.
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