Patterico's Pontifications


President Trump’s Declaration Of National Emergency At Border Is Overturned By Senate Vote

Filed under: General — Dana @ 2:50 pm

[guest post by Dana]

Here we go:

The Senate passed a resolution Thursday to overturn President Trump’s declaration of a national emergency at the U.S.-Mexico border, with 12 Republicans joining all Democrats to deliver a bipartisan rebuke to the president.

The disapproval resolution passed the House last month, so the 59-41 Senate vote will send the measure to Trump’s desk. Trump has promised to use the first veto of his presidency to strike it down, and Congress does not have the votes to override the veto.

“VETO!” Trump tweeted moments after the vote.

For weeks Trump had sought to frame the debate in terms of immigration, arguing that Republican senators who supported border security should back him up on the emergency declaration. But for many GOP lawmakers, it was about a bigger issue: The Constitution itself, which grants Congress — not the president — control over government spending.

By declaring a national emergency in order to bypass Congress to get money for his wall, Trump was violating the separation of powers and setting a potentially dangerous precedent, these senators argued.

Republicans who voted with Trump and against the disapproval resolution said the president was acting within his authority under the National Emergencies Act, and taking necessary steps to address a humanitarian and drug crisis at the border that Democrats had ignored.

The 12 Republicans who voted to terminate the national emergency declaration:

Sen. Roger Wicker (Mississippi)
Sen. Marco Rubio (Florida)
Sen. Rob Portman (Ohio)
Sen. Susan Collins (Maine)
Sen. Lisa Murkowski (Alaska)
Sen. Pat Toomey (Pennsylvania)
Sen. Roy Blunt (Missouri)
Sen. Lamar Alexander (Tennessee)
Sen. Mitt Romney (Utah)
Sen. Rand Paul (Kentucky)
Sen. Jerry Moran (Kansas)
Sen. Mike Lee (Utah)

After a failed attempt at finding a compromise with the president, Sens. Lindsey Graham, Ted Cruz and Ben Sasse voted against the disapproval resolution.

Here are their reasons for voting as they did (excluding Sen. Graham because his vote was unsurprising):

From Ted Cruz:

“This was a difficult vote. I understand my colleagues’ real concerns regarding the vast emergency powers that Congress has given the President over the last half-century … We cannot end this emergency without securing our southern border, and we cannot secure our border without building the wall.”

From Ben Sasse:

“We have an obvious crisis at the border everyone who takes an honest look at the spiking drug and human trafficking numbers knows this and the President has a legal path to a rapid response under the National Emergencies Act of 1976 (NEA). I think that law is overly broad and I want to fix it, but at present Nancy Pelosi doesn’t, so I am therefore voting against her politically motivated resolution. As a constitutional conservative, I believe that the NEA currently on the books should be narrowed considerably. That’s why I’m an original sponsor of Senator Lee’s legislation, and it is why I have repeatedly gone to the White House to seek support for NEA reform.”

Not so fast, Phillip Klein argues (re Sasse):

“This is a cop-out. Nothing in the world would prevent Sasse from both voting to disapprove of this specific invocation of emergency powers while also advocating for broader reforms. He is setting up a classic false choice. Sasse has in the past lamented the tendency of people to put their preferred outcomes over respecting process and institutional checks on power, and yet here he is, embracing a move because of the policy outcome.”

Allapundit’s take on reasons why Cruz and Sasse voted against the disapproval resolution:

He still dreams of being president and knows that 2024 rivals like Tom Cotton would have used this vote against him to get to his right with populists. He put Ted Cruz’s political interests above everything, including what he professes to believe. As usual.

The truth about Sasse, the only possible explanation, is that he’s decided to run for reelection in Nebraska and calculated that he wouldn’t be able to survive a primary challenge if he opposed Trump on this. There’s too much heat. Maybe he can survive one if he quiets down with the Trump criticism over the next 12 months and votes Trump’s way. Forced to choose between his brand as a constitutional conservative who wants to restore separation of powers and his job, Sasse made his choice.


On the one hand, Congress laudably stood up for its constitutional prerogatives as the country’s lawmaking body, rebuking the president for his executive power-grab and forcing him to issue his first veto. On the other hand, Senate Republicans—including some who have talked a lot about opposing Trump’s erratic actions—overwhelmingly rolled over and voted to let Trump’s emergency go through.

In a funny way, even though the vote was largely symbolic, it turned out to be revealing…

(Cross-posted at The Jury Talks Back.)


61 Responses to “President Trump’s Declaration Of National Emergency At Border Is Overturned By Senate Vote”

  1. For some, being re-elected supersedes everything else…

    Dana (023079)

  2. For Mitt and others, having a pool of cheap exploitable labor supersedes everything else….

    Munroe (5c3274)

  3. Cocaine Mitch is showing his impeachment power.

    mg (8cbc69)

  4. It’s not overturned because Trump will veto the bill.

    There was a proposal udnerr consideration where the Senate would pass a bill changing the emergency law so that in the future transfer of funds would last only for 30 days unless ratified by an Act of Congress, in return for which Mitch McConnell hoped he would manage to avoid having this bill pass, but Predident trump completely torpedoed that (House Speaker Nancy Pelosi had already said she would not bring it up for a vote in the House.)

    Sammy Finkelman (102c75)

  5. if loving mr. trump, the president, is wrong, i don’t want mr. cruz to be right

    nk (dbc370)

  6. the possum congress doesn’t disappoint, they were doing a similar favor for Iranian and Qatari friends re the kingdom yesterday.

    narciso (d1f714)

  7. as far as mr. ben sasse goes, which a little bit goes a long way, of course he wants to keep his job

    which will not be a very bad thing when mr. robert francis “beto” o’rourke is president

    did you know that there was also a robert francis kennedy?

    it’s a small world

    nk (dbc370)

  8. I heard of that fellow, I also heard he challenged the mobs, when it was an unpopular thing to do, he close poorly in his choice of back channel to kruschev, but what can you do,

    narciso (d1f714)

  9. there was also a sir edmund hillary who climbed this really big mountain

    and then there was a lady named hillary rodham clinton whose husband became president

    it’s kismet, really

    nk (dbc370)

  10. “VETO!” tweets Trump.
    “BETO!” tweets Beto.

    DCSCA (797bc0)

  11. It will be the first time he’s fought since he was sworn in. Up to now, McConnell and Grassley have been doing his fighting.

    No, blathering at rallies and whining on Twitter is not fighting.

    nk (dbc370)

  12. The thing I always wonder about politicians who believe they have to make this or that compromised vote because they need to keep their job so they can make the hard vote for their district when it’s needed is, at what point do you actually make the hard vote?

    Nic (896fdf)

  13. Are we really considering this a power grab by Trump when he’s using powers authorized by Congress?

    If Congress doesn’t like it, they have the power to stop it by meeting certain thresholds.

    Also, I don’t think we have to worry about a future Democrat POTUS using the NEA to seize out firearms or anything like that…this argument seems very chicken little.

    whembly (f68468)

  14. i think every single one of them voted the way they thought their constituencies would want them to, mr. Nic

    especially their $5,400 maximum contribution per election constituency

    except maybe matriarchy mitt romney

    he votes the way his womenfolk tell him to

    as he pleats their petticoats

    and his

    nk (dbc370)

  15. David Kramer, the John McCain aide who leaked the discredited Christopher Steele dossier on President Trump, testified in a libel case that he spread the unsubstantiated anti-Trump material all over Washington during the presidential transition.

    Mr. Kramer, a former State Department official and a Trump detractor, leaked dossier material to the Wall Street Journal, the Washington Post’s Fred Hiatt, CNN’s Carl Bernstein, National Public Radio, McClatchy news service and others, he said.

    harkin (09d352)

  16. the late senator mr. mcain was not incapacitated during the transition in 2016

    He gave a public in-person interview in August, 2017 among other things

    so there can be no plausible claim that this was his staff going rogue during his incapacitation

    nk (dbc370)

  17. @14 that may be so, but that sort of thing always makes me wonder. As for Mitt, his only “womenfolk” is his wife, he doesn’t have any daughters, only sons. So I guess he could be voting the way his wife tells him, but it seems unlikely.

    Nic (896fdf)

  18. Dana,

    They can rescind the power through normal congressional legislation. Instead, they are just saying that Trump doesn’t deserve the same power they gave to Obama and other peesidents for some reason.

    NJRob (0e30f6)

  19. Mitt … he doesn’t have any daughters, only sons

    Well …

    nk (dbc370)

  20. @19 also pretty sure Romney’s 7 year old grand-daughter isn’t instructing him on how to vote.

    Nic (896fdf)

  21. “VETO!” tweets Trump.
    “BETO!” tweets Beto.

    BEVO!” tweets Bevo.

    JVW (54fd0b)

  22. I’m not surprised that Cruz would show no spine. He doesn’t take a dump without making political calculations. I am surprised that Sasse went that way. Disappointing.

    Paul Montagu (d49d0a)

  23. I think I am grouchy and cynical, but I’m not too bothered by how anyone on either side voted. The deal the GOP offered Pelosi seemed reasonable, but frankly Great Aunt Nancy probably sees a future left-wing Democrat President leading to another GOP House majority, so she wants to keep the strong executive in order to protect left-wing advances. She knows that her party will tie up any Trump Executive Orders in the courts, and will at least delay them for a while if they can’t quite undo them.

    Meanwhile, the GOP has gone on record as trying to take back power from the executive branch that rightfully belongs to the legislative branch, but they were rebuffed by the Democrats so now they are free to let Trump vex the left to his heart’s content. It means that very little will be accomplished in Washington for the time being, but that’s not always a bad thing.

    JVW (54fd0b)

  24. I could see Bevo charging at Beto.

    urbanleftbehind (3439dc)

  25. I want the Wall. What do you guys want?

    I didn’t always. I initially took the position that “our wall is the breasts of our warriors”. But Americans are not Spartans. We’re not even Swiss.

    nk (dbc370)

  26. The Cajun Navy better learn to multitask, nk.

    urbanleftbehind (3439dc)

  27. @21.

    “Typo!” tweets WaPo.
    “Stucko!” tweets Groucho.
    “Piano!” tweets Chico.
    “…….!” tweets Harpo.

    DCSCA (797bc0)

  28. @25 Not The Wall. We have walls/fences where it makes sense to have them, adding to them is a waste of money. I want enough people to process visas on a reasonable time table so that deliberate overstays are discernible from “waiting for my renewal to process for 5 years” overstays. I want a path to citizenship for people we’ve already invested thousands and thousands of dollar in educating and who qualify via whatever we decide is a qualification. I want enough courts so that we can send enough people through them quickly enough that we aren’t spending more and more money on detention centers. I want reasonable time in processing asylum requests so we aren’t either losing or detaining people for long periods of time.

    I want funds for military housing and runway repair and base repair etc to be used for that and not for a not very effective wall expansion, so that our military families aren’t living in houses with black mold or other issues that come from disrepair, esp since military housing isn’t great construction to begin with (opinion the result of having lived in military housing).

    I do not want Presidents from here until the end of time raiding the military construction funds to fund whatever their current pet project is. Congress has a job, make them do it.

    I want many other things, but those are the ones relevant to the current topic.

    Nic (896fdf)

  29. I want a big, beautiful wall that will stand as a symbol that we are finally going to take seriously the laws of our nation and defend itself against invasion. It says, just like the successful walls in Israel and Hungary that only those we permit to be here legally are welcome.

    NJRob (4d595c)

  30. president beto will declare national emergency and ban bullets and federal fire arms tax by democrats running congress. 2020 is knocking on your door!

    lany (b43cb9)

  31. Whatever the validity of this emergency declaration, the original disapproval mechanism of a concurrent resolution, not subject to the veto, was the correct one. If a President cannot get at least ONE of the houses of Congress to agree with him, his use of emergency powers SHOULD be blocked.

    Yet another example of the terrible 1983 decision Chadha v INS that stuck down Congress’s well-designed “legislative veto” check and balance against the executive and the regulatory behemoths that were created in the 70’s.

    The feckless Congress actually knuckled under and removed the legislative vetoes from the laws, so there is no good way to revisit this dog’s breakfast of a decision. Too bad, because this would be the perfect vehicle.

    Kevin M (21ca15)

  32. Rather than veto this, Trump ought to reflect on the fact that he could not get anything like agreement from Congress, and his insistence on a state of emergency in the face of that will be a hollow victory.

    Not that he will, but he should.

    Kevin M (21ca15)

  33. Heh! She had plenty of space on the driver’s side. Being 1) Asian, 2) a woman, and 3) old, it never even crossed her mind to get in her car and move it a little forward or backward and then she would have all the space she needed to open the passenger side doors.

    nk (dbc370)

  34. Class bottom blues, you made me cry.
    I can’t get into college,
    No matter how hard I try.
    Mom and dad are up in arms.

    Do you want to see them slip cash to a coach?
    Do you want to hear them beg to put me on the soccer team?
    They’ll gladly do it because
    They don’t want me to do fades in a barber shop.
    Take another hundred thou, please.
    I don’t want to do fades.
    White collar I want to stay.

    nk (dbc370)

  35. Post #35 explains a lot of posts like #33…although Elaine is more of the Crazy Rich variety.

    urbanleftbehind (3439dc)

  36. Sorry, 36 should be in the college admissions thread.

    nk (dbc370)

  37. Serious question for the legal scholars among us:

    How is this action by Congress any different from the legislative veto, which was overturned by the Supreme Court in the 1980s?

    Chuck Bartowski (bc1c71)

  38. It follows the rules set by the black-robed junta in that case. It’s passed like any other bill. House, Senate, President signs or has veto overridden.

    In Chadha v. INS, the legislative veto that was struck down was one that could be imposed by either chamber of Congress. The House alone, or the Senate alone, and no signature by the President.

    nk (dbc370)

  39. Thanks, nk.

    Chuck Bartowski (bc1c71)

  40. Chadha stuck down the single-house veto, but the same arguments would be used to strike down a dual-house veto, such as this one.

    The idea behind the single-house veto was this:

    1) These powers (e.g. passing laws) were Congress’s.
    2) In order to allow for regulations, within certain bounds, that could have the force of law, Congress created some executive agencies to hire experts, hold hearings, and promulgate largely technical regulations that were difficult or impossible for Congress to handle in a timely manner.
    3) The structure Congress chose was that such regulations would be “deemed” passed by Congress UNLESS one House or the other objected by recorded vote, indication that such a law would not have passed Congress. This was intended as a check on the power of the bureaucratic monstrosity they had created.

    Then along comes the Supreme Court which strikes down the veto BUT NOT THE TRANSFER OF POWER that the veto was attached to.

    The dissents (summarized by Wikipedia)

    Justice White, dissenting, argued that (1) the legislative veto power is absolutely necessary to modern government, as exemplified by the legislative veto powers granted in the War Powers Act of 1973. (2) The absence of constitutional provisions for alternate methods of action does not imply their prohibition by the Constitution, and the Court has consistently read the Constitution to respond to contemporary needs with flexibility. (3) The legislative veto power does not involve the ability of Congress to enact new legislation without bicameral consensus or presentation to the president, but instead involves the ability of Congress to veto suggestions by the executive, a power that both houses of Congress already possess. (4) The Court has allowed Congress to delegate authority to executive agencies; lawmaking does not always require bicameralism or presentation. (5) The bicameralism and presentation provisions of the Constitution serve to ensure that no departure from the status quo takes place without consensus from both houses of Congress and the President or by a super-majority vote of both houses of Congress. In this case, the deportation of Chadha is the status quo situation, and the veto by House of Representatives of an alternative suggestion of the executive branch is reasonable given the purposes of bicameralism and the Presentment Clause.

    Justice Rehnquist, in a dissent joined by White, argued that it is unlikely that Congress would have promulgated § 244(a)(1) without the corresponding provisions of §§ 244(c)(1–2). Therefore, the provisions are not severable from one another, and holding one unconstitutional requires invalidating the other.

    Kevin M (21ca15)

  41. It is really too bad that a feckless Congress amended the National Emergency Act in 1985, after Chadha, since otherwise a damn fine case could be brought that an ENUMERATED power of Congress was allowed to be used by the Executive in emergent situations, and that Congress had the sole authority to judge whether a given situation was emergent.

    It might even work now, but that 1985 revision makes it a lot harder.

    Kevin M (21ca15)

  42. Well, yes, without Trump signing (snicker) or his veto being over-ridden, this resolution is void.

    nk (dbc370)

  43. mr. trump, the president is a very smart man

    he will not a sign a resolution which takes away his emergency money for the wall

    that’s why everybody loves him

    nk (dbc370)

  44. Well, yes, without Trump signing (snicker) or his veto being over-ridden, this resolution is void.

    Maybe he can be distracted for 10 days.

    Kevin M (21ca15)

  45. But really, think what this means. The Constitution assigns this power to Congress. Congress doesn’t want to do this. The President goes and does it anyway.

    This is where “legal rights” and “moral rights” diverge, and why Law and Justice are two separate things.

    Kevin M (21ca15)

  46. The whole point of the wall argument was not about building a wall — the wall itself does very little except make people buy bigger ladders.

    No, the POINT was to get CONGRESS to put money into a wall so that they were on record as favoring increased security on the southern border. To anyone not named Trump, it was not about “Trump’s Wall.”

    But now, we have exactly the opposite. By being so bloody-minded that he could not see anything but his reflection in the mirror, Trump has managed to get Congress on records AGAINST increased border security. A rare feat.

    Kevin M (21ca15)

  47. In Chadha v. INS, the legislative veto that was struck down was one that could be imposed by either chamber of Congress. The House alone, or the Senate alone, and no signature by the President.

    As Justice White pointed out, on matters regarding passing new laws or other powers of Congress, Congress ALREADY had the right to kill any Executive suggestion by a negative vote of either house. No new law was being passed by their action, so no presentation or signature was required.

    The history of this country would have been decidedly more conservative without Chadha giving untrammeled power to the bureaucracy.

    Kevin M (21ca15)

  48. And so to him fell the unenviable task of developing the New Border Security Tool: a mutant strain of attack chihuahua, crossed with the voracious piranha… herds and schools of the angry little buggers for as far as the eye could see… patrolling the border most between the USA and Mexico.

    Yes, the foolhardy may still make an attempt to enter the land of milk and honey, but the disfigurement that would ensue would be a powerful reminder of the heavy price paid.

    Colonel Haiku (2601c0)

  49. Teh border moat

    Colonel Haiku (2601c0)

  50. Rather than focus debate on a wall that will likely never get built, wouldn’t it be a much better use of time and energy to debate the merits of comprehensive immigration reform?

    Actually, heck no, it wouldn’t. Let’s not get stupid.

    Munroe (5b126a)

  51. Border security and immigration are related but they’re not identical. Border security must come first. Debating who comes through your door when there’s no door is pointless.

    nk (dbc370)

  52. Kevin M (21ca15) — 3/15/2019 @ 2:09 am

    , the original disapproval mechanism of a concurrent resolution, not subject to the veto, was the correct one. If a President cannot get at least ONE of the houses of Congress to agree with him, his use of emergency powers SHOULD be blocked….

    …The feckless Congress actually knuckled under and removed the legislative vetoes from the laws, so there is no good way to revisit this dog’s breakfast of a decision. Too bad, because this would be the perfect vehicle

    There’s a way of getting around it, which Mitch McConnell was offering (for fuuture emergencies) as away of preventing the disapproval from passing the Senate. But Nancy Pelosi said she would not let it get avote in the House and President Trump indicated he was against a bill like that.)

    Make the emergency declaration valid for only 30 days, and require it to be ratified by both houses of Cpmgress to continue (plus of couyrse having the vote mandatory – each House can set rules for itself as art of a bill so there would be no filibuster for that bill.

    That does give you a one-House veto.

    Sammy Finkelman (102c75)

  53. The REINS Act is also a one-house veto if you get down to it.

    Oh, a prediction: The moment the Dems have both houses of Congress and the Presidency, the National Emergency Act is repealed. The filibuster will have already been eliminated, of course.

    Kevin M (21ca15)

  54. 56. Kevin M (21ca15) — 3/15/2019 @ 1:02 pm

    The REINS Act is also a one-house veto if you get down to it.

    I don’t think it’s law though.

    Many many years ago, I heard from aguest on the Barry Farber show that this (actually even more) was the law in Austria: Regulations needed to be passed by the Parliament to become law. Presumabably that was probably the result of some court decision.

    I thought it was a good idea, albeit cumbersome. It might not still be the law. (come to think of it, could that be one reason austria did not join the European Union?)

    The Reins Act [“Regulations from the Executive in Need of Scrutiny”] would only apply to regulations that (someone estimates somewhere) cost more than $100 million – about 3% of all regulations.

    Oh, a prediction: The moment the Dems have both houses of Congress and the Presidency, the National Emergency Act is repealed. The filibuster will have already been eliminated, of course.

    Wouldn’t they want to repeal it or change it only in a lame duck session of Congress?

    Sammy Finkelman (102c75)

  55. trump has now vetoed the Congressional resolution that would have blocked him from using defense funds to build the border wall. It didn’t pass either House of Congress by close to two thirds. In the Senate it got 59 votes.

    Of course there’s some other money, not affected by the Emergencies Act, thst he can tap first, like forfeitures or money for stopping the smuggling of drugs.

    Trump’s plan, I read some time ago, is to ask Congress to re-appropriate any money he diverts.

    Sammy Finkelman (102c75)

  56. It sounds like Trump wanted to lose the vote so he could use the veto. Does that mean he wants to build the wall, or does that mean he knows he can’t and wants to posture?

    DRJ (15874d)

  57. Heh! When doesn’t Trump want to posture? And considering that the Wall did not become a priority for him (let alone a national security and humanitarian crisis !!!1!) until he made sure the Republicans lost the House, I’m pretty sure that it has always been a posture. But we WILL be fooled again.

    nk (dbc370)

  58. Trump’s constant posturing is causing people to get cynical about politicians. Lord.

    Munroe (fba3ff)

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