Congress delivered a somewhat surprising bipartisan accomplishment this week with an agreement to fund the government through the end of the fiscal year and avoid another pointless shutdown.
The deal wasn’t enough for President Donald Trump, however. While he signed the deal, he then took the unfortunate and possibly unconstitutional step of declaring a national emergency in order to dedicate more funding to barriers on the southern border than what Congress has authorized.
Democrats, of course, railed against the move. More telling, however, were the constitutional and strategic warnings offered by some congressional Republicans before the president’s official announcement on Friday.
“Such a declaration would undermine the role of Congress and the appropriations process; it’s just not good policy,” Sen. Susan Collins warned in a statement Thursday. “It also sets a bad precedent for future presidents — both Democratic and Republican — who might seek to use this same maneuver to circumvent Congress to advance their policy goals. It is also of dubious constitutionality, and it will almost certainly be challenged in the courts.”
Republican Rep. Cathy McMorris Rodgers of Washington released a statement agreeing with Trump’s concerns about the southern border but opposing his approach with the declaration.
“While I share President Trump’s concerns about the important need to secure our southern border and his frustrations with Democrats’ refusal to keep our country secure, this is not the right approach to achieve our shared goal,” said McMorris Rodgers, the former chairwoman of the House Republican Caucus. “I do not support this decision because declaring a national emergency sets a very dangerous precedent that undermines our constitutional separation of powers. By circumventing Congress and Article I of the Constitution, President Trump is opening the door for any future president to act alone without Congressional approval.”
Republican Sen. Rand Paul, R-Kentucky, has increasingly sided with Trump on some issues, but not on this one, saying he is “not in favor running the government by emergency, nor spending money.”
“The Constitution’s pretty clear: Spending originates and is directed by Congress, so I’m not really for it,” Paul added, according to a report from Fox News.
Sen. John Cornyn of Texas, a prominent member of the Senate Republican Caucus, similarly expressed concern about the precedent set by an emergency declaration and pointed to the strategic pitfalls involved — including the likelihood of a legal challenge.
“My concerns about an emergency declaration were the precedent it would establish,” Cornyn said. “I also thought it would not be a practical solution because there would be a lawsuit filed immediately and the money would presumably be balled up associated with that litigation. I thought there were other, better alternatives.”
Emergency declarations in general are not without precedent. According to the Brennan Center for Justice at the New York University Law School, 58 such emergencies have been declared since 1979 and over 30 of them are still in effect today.
But by redirecting roughly $8 billion in funds towards wall construction without legislative approval, Trump’s order strikes against Congress’ constitutional “power of the purse.” It’s a separation of powers question that seems likely to eventually find its way before the Supreme Court, as Trump acknowledged Friday.
“I didn’t need to do this, but I’d rather do it much faster,” Trump said Friday about his declaration and his desire to quickly build more barriers on the southern border. The comment somewhat undermined his claim that the situation rises to the level of an emergency.
All four members of Maine’s congressional delegation voted for the $333 billion funding deal worked out by appropriators to avert a shutdown, which passed by veto-proof majorities in both the House and Senate and includes roughly $1.4 billion for additional barriers on the southern border to expand the 650 miles of existing wall infrastructure.
By funding the government through the end of September, this deal could potentially have set the stage and given Congress breathing room for another chance at larger negotiations on comprehensive immigration reform — something the president said Friday he would be interested in exploring.
“I would like to see major immigration reform,” Trump said. Unfortunately, with the fight now likely to center around the president’s emergency declaration, it’s difficult to see that larger and much-needed conversation happening any time soon.