Congressional Republicans don’t love the idea of President Trump declaring a national emergency to secure funding for his border wall. But GOP lawmakers on both sides of the Capitol signaled they wouldn’t do anything to try and stop or shame him.
During the month-long government shutdown, Trump dangled the possibility he would bypass Congress to get $5.7 billion for the wall by declaring an emergency, which would open up special sources of funding for the executive branch.
With the shutdown now over, Congress has until February 15, when the current government spending bill expires, to reach a deal on border security. If lawmakers fail, or if they come up with a package he doesn’t like, Trump has said—once again—that he will declare an emergency in order to free up the resources to begin border wall construction.
Some Republicans have openly fretted about what such a declaration would mean in the long term. Sen. Marco Rubio (R-FL) said the move would establish a precedent that would make it easier for a future Democratic president to enable aggressive action on climate change, for example.
But many Republican lawmakers hinted that they’d live with the declaration rather than raise a stink over it.
“I’m not recommending it, it’s not my preferred choice,” said Sen. John Kennedy (R-LA). “But I, unlike some of my colleagues, don’t believe it’ll be the end of Western order if he does it.”
For GOP lawmakers, fear over the prospect of empowering a future Democratic president or further contributing to the legislative branch’s ineptitude has been overshadowed by concerns about another bruising shutdown fight or a border security deal that leaves their base dissatisfied. Among them, the prospect of Trump declaring a national emergency is being embraced as the least bad of plainly bad outcomes in the event Congress’ legislative efforts fail again.
“It institutionally weakens Congress a great deal, and that’s already happened too much,” Rep. Tom Cole (R-OK) said of an emergency declaration. But he still maintained that the option should not be off the table. “I don’t think you unilaterally disarm,” he said.
Virtually all Republicans on the Hill believe that the president does have broad authority to declare an emergency, noting that Trump’s predecessors have exercised that authority, mostly during times of war. However, past national emergency declarations have been occasionally overruled by the courts, and it’s inevitable that Trump would get hit with lawsuits challenging the legality of any emergency declaration to build the border wall.
Legal experts have said that the White House could prevail in a long-term court battle over the emergency declaration. But several lawmakers predicted a lower-court judge would block it first, delaying the administration’s ability to use emergency funds to start constructing the wall.
“I have no doubt that the opponents have already drafted hundreds of petitions and they’ll file one with every district judge in the 9th Circuit until they find someone who will issue a unilateral injunction, which is horrible on its face,” said Kennedy, referring to the west coast U.S. appeals court that has stymied several Trump administration initiatives.
Two Senate Republicans expected to face the most competitive re-election challenges in 2020 did not push back on Trump’s emergency declaration card, reflecting the continued pressure that many GOP lawmakers continue to feel to support the president.
“He will say what he’s going to say,” Sen. Joni Ernst (R-IA) said of the president’s emergency rhetoric. “Let’s focus on reaching a deal.”
Sen. Cory Gardner (R-CO) predicted the declaration would get “tied up in court” and called on Congress to “do its job.”
The only GOP lawmakers willing to oppose the idea of an emergency declaration when asked by The Daily Beast were the House’s most devoted libertarian and the only House Republican who represents a district that borders Mexico.
Rep. Will Hurd (R-TX), whose district spans much of Texas’ border with Mexico, said on Monday “it would be a bad idea to call a national emergency.”
On Monday, Rep. Justin Amash (R-MI) slammed the idea of a national emergency declaration on Twitter, saying Trump “can’t claim emergency powers for non-emergency actions whenever Congress doesn’t legislate the way he wants.”
Amash told The Daily Beast his tweets speak for themselves. “I think it’s unfortunate for our country if Republicans who have stood for limited government capitulate on this issue just because it’s a Republican president.”