Republicans want to change the National Emergencies Act — after Trump builds his wall

“This is about the Constitution and how we spend money.”
March 7, 2019, 3:55pm

WASHINGTON — As soon as next week, the Senate is set to rebuke President Donald Trump for going around Congress and declaring an emergency at the border so he can erect his border wall. The White House is promising to veto the measure, but that doesn’t mean Senate Republicans are happy walking the plank for him.

A growing number of senators in both parties are now clamoring to change the National Emergencies Act of 1976, the decades-old law that Trump is using to divert billions to a border wall without congressional approval.


“When we’re sworn in, we say that we’re going to faithfully defend the laws in our Constitution. We don’t say that we’re going to defend our president or our majority leader or whoever else it may be,” Sen. Lisa Murkowski (R-Alaska), who is one of four Republicans prepared to oppose Trump’s emergency declaration, told VICE News. “So for me on this issue, it is more an institutional perspective.”

Now Murkowski and others are hoping Congress will revisit the National Emergencies Act itself once this episode is over.

“There is not a lot of specificity to the law,” she said. “We don’t really lay forth a series of criteria upon which you’ve got a lot of parameters there for the president to act.”

123 national "emergencies"

The legislation, signed by President Gerald Ford in 1976, formalized a mechanism for the president to invoke special powers, including the ability to divert money to an "emergency" without congressional approval. It's been invoked 123 times. But with Congress set to vote against the current declaration, Republicans are eager to revisit the law so the president — or a future Democratic president — couldn't use it to explicitly subvert the will of Congress.

"The president’s exercising authority which Congress gave him. So shame on us.”

“I think we need to have a larger conversation about why Congress has expressly delegated authority to the president to reprogram money 123 times," said Sen. John Cornyn (R-Texas), who is going to vote with Trump, told reporters in the Capitol. "To me, that’s an abdication of our responsibility. The president’s exercising authority which Congress gave him. So shame on us.”


Other Republicans are upset with Senate Majority Leader Mitch McConnell for taking up the House version of the resolution — with passed with 13 Republican defections — in the first place.

“Bottom line: We know [House Speaker Nancy] Pelosi’s resolution isn’t going to become law, so we ought to promote a different legislative vehicle so we can express our views,” Sen. Ron Johnson (R-Wis.) told reporters at the Capitol. “I think Senate Republicans ought to lead on this issue and present a resolution or at least a piece of legislation that expresses our will, and not just vote on Nancy Pelosi’s resolution, which is purely political.”

While Johnson’s going to vote for the wall, he’s also upset with the act itself for giving the president broad authority to declare emergencies.

“We need to bring some of that authority back.”

“We’re also concerned about the whole constitutional issue in terms of how Congress appropriates and really what authority past Congresses have granted the president,” Johnson said. “We need to bring some of that authority back.”

But Republican leaders brush aside the criticisms that they’re merely carrying water for Pelosi. They argue if they were to bring up a separate resolution or amend the House-passed one, it would require a long process with another formal conference committee to negotiate another compromise with House Democrats.

“You could get in this loop where you’re ping-ponging this thing back and forth, and it seems to me that just extends and belabors the point. And I don’t think anyone wants that,” Sen. John Thune (R-S.D.), the Senate majority whip, told VICE News at the Capitol.


Ceding power to the White House

But other opponents argue the whole emergency act itself is unconstitutional, even though Congress passed it.

“The Constitution says only Congress makes laws and if you want to draw money from the treasury it has to be done by a law. It also says you can’t give this power up.”

“This isn’t about pushing back on the president. This is about the Constitution and how we spend money,” Sen. Rand Paul (R-Ky.), who is opposed to Trump’s emergency declaration, told reporters underneath the Capitol. “It’s pretty explicit. The Constitution says only Congress makes laws and if you want to draw money from the treasury it has to be done by a law. It also says you can’t give this power up.”

Still, other Republicans who are prepared to vote with Trump are cautioning party leaders and the White House that this whole episode will come back to haunt them when they have to fund the entire government later this year. And they fear House Democrats are going to explicitly tie the president’s hands in the next round of spending talks so that Trump can’t go around the explicit will of Congress again.

“As long as you have divided government, I can’t see a situation in which the House wouldn’t put limitations on his emergency authority on appropriations bills in the future,” Sen. Mike Rounds (R-S.D.) told reporters at the Capitol. “And I think that’s a bigger issue than a lot of people would imagine.”

Rounds says GOP leaders are rushing ahead with an effort that they’ll regret in the fall.

“So once again you have another crisis that’s being created right now,” Rounds said. “And everybody should be aware of that.”

Cover image: U.S. President Donald Trump pauses while speaking after signing an executive order entitled 'National Roadmap to Empower Veterans and End Suicide' in the Roosevelt Room of the White House in Washington, D.C., U.S., on Tuesday, March 5, 2019. (Photo: Alex Edelman/Bloomberg via Getty Images)