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Will Congress Terminate Trump’s National Emergency?

House Democrats plan to introduce a resolution to block Trump’s national emergency declaration on Friday. It’s gaining bipartisan support, but can it pass the Senate?

January 12, 2019 - San Antonio, Texas, U.S. -  Congressman JOAQUIN CASTRO (D-TX) makes remarks prior to his twin brother, former HUD Secretary and Mayor of San Antonio, JULIAN CASTRO, announced that he will be running for president in 2020

Rep. Joaquin Castro (D-TX) makes remarks prior to his twin brother, former HUD Secretary and Mayor of San Antonio, Julian Castro, announced that he will be running for president in 2020

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One week ago, hours after President Trump declared a national emergency, Rep. Joaquin Castro (D-TX) announced plans to introduce a resolution to block it. “I ask all members of Congress — Democrat and Republican — to support this joint resolution to terminate President Trump’s unconstitutional national emergency declaration to build his border wall,” Castro tweeted, along with a draft of the bill. “It sets a dangerous precedent and steals congressional authority. Will you sign on?”

Reuters reports that House Democrats plan to formally introduce the resolution on Friday, and that 92 lawmakers have signed on to back it. On Thursday night, Castro tweeted that the resolution has 222 cosponsors.

As of Friday morning, the number was closing in on 230, including a Republican, Rep. Justin Amash (R-MI).

The National Emergencies Act of 1976 gives the president broad authority to declare a national emergency, but it also gives Congress the power to pass a resolution striking it down. Unfortunately, the bill would have to receive support of at least two-thirds of both the House and the Senate to override a potential veto from Trump. This isn’t going to happen, but the bill is still a worthy pursuit. The Constitution grants Congress the power to appropriate government funding, and Trump’s brazen move to subvert the will of lawmakers so that he can build a border wall needs to be challenged somehow.

Castro’s resolution is certain to pass the Democratic-controlled House, after which it would move to the Senate, where Majority Leader Mitch McConnell (R-KY) would be forced to bring it to the floor for a vote. Republicans have a 53-47 advantage in the Senate, which means four GOP senators would need to support the resolution for it to pass. This isn’t as far-fetched as it may seem. Several prominent Republicans have condemned Trump’s decision to declare a national emergency. Sen. Lamar Alexander (R-TN) wrote in a statement that it is “unnecessary, unwise and inconsistent with the U.S. Constitution.” Sen. Thom Tillis (R-NC) said he “strongly believe[s] in the separation of powers and curbing the kind of executive overreach.” Sen. Lisa Murkowski (R-AK) was blunt in her disapproval. “I’ll be very direct,” she said. “I don’t like this.”

Additional Republican senators like Rand Paul (R-KY), Rob Portman (R-OH), Ron Johnson (R-WI), Marco Rubio (R-FL) and others have expressed varying degrees of opposition to the declaration. Sen. Susan Collins (R-ME), who is likely in for a tough re-election fight in 2020, has gone so far as to say that she supports a lawsuit filed earlier this week by 16 predominantly Democratic states that describes the declaration as an “unconstitutional and unlawful scheme.” Collins is also the only Republican to say that she could vote in favor of a congressional resolution to block the declaration. “If it’s a clean disapproval resolution, I will support it,” she told reporters.

At this point it’s anybody’s guess whether her colleagues that have publicly opposed the declaration will also do so through a vote for Castro’s resolution. If Collins and at least three other Republican senators vote in favor of it, the resolution will move to the desk of the president, who is sure to veto it. But forcing him to do so would be an incredible rebuke from a bipartisan Congress that doesn’t appreciate the president’s attempt to circumvent its authority as it is outlined in the Constitution.

Even if Castro’s resolution falls flat in the Senate, Trump’s national emergency declaration has already been bombarded with litigation. Several advocacy groups have filed or plan to file lawsuits challenging the declaration, as have 16 states. The latest filing comes from the County of El Paso, where earlier this month Trump delivered a campaign-style rally that was riddled with falsehoods about border security.

If a congressional resolution and a handful of lawsuits weren’t enough, Trump might also have a hard time siphoning wall money from the government programs he has deemed not as important. Roll Call reported on Thursday that Congress will have the power to block him from re-appropriating more than a third of the Department of Defense money he planned to take for the wall. If there’s one thing at which the White House excels, however, it’s finding semi-legal loopholes around roadblocks set up to prevent any one person from taking control of the government. As Roll Call notes, Trump may be able to “move money as he wishes in the Pentagon budget and just disregard the traditional requirement that a president must get congressional approval” for sizable money transfers. It’s unlikely the president would have any qualms about doing so.

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