Senate rejects border emergency declaration, but not with veto-proof majority

A dozen Republicans joined Senate Democrats today to overturn President Trump’s declaration of a national emergency at the southwestern border. The vote was 59-41.

Trump promptly declared he would veto Congress’ action. With only 59 Senate votes against him, the veto will stick.

The 12 Republicans who voted to overturn Trump’s declaration are:

Mitt Romney
Susan Collins
Lamar Alexander
Roy Blunt
Mike Lee
Jerry Moran
Lisa Murkowski
Rand Paul
Rob Portman
Marco Rubio
Patrick Toomey
Roger Wicker

I understand the concerns that, presumably, animated these Senators. As Sen. Ben Sasse said last month:

[A]s a Constitutional conservative I don’t want a future Democratic President unilaterally rewriting gun laws or climate policy. If we get used to presidents just declaring an emergency any time they can’t get what they want from Congress, it will be almost impossible to go back to a Constitutional system of checks and balances. Over the past decades, the legislative branch has given away too much power and the executive branch has taken too much power.

But today, Sasse voted against the resolution. He explained:

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).

Sasse added that the NEA is too broad, and he is sponsoring legislation to narrow it. But there is a border crisis and legislation exists that permits the president to address that crisis as he has.

Sen. Tom Cotton made a similar argument:

When hundreds of thousands of foreigners arrive at the southern border and demand entry, that’s not migration. That’s an emergency and a threat to our sovereignty. . . .

This surge of illegal aliens is swamping law enforcement’s ability to do its job. “Overwhelmed,” that’s the word we hear so often from agents. Border Patrol Commissioner Kevin McAleenan says, “This is clearly both a border security and humanitarian crisis.”

But the consequences of this crisis stretch far beyond the border, sometimes thousands of miles away. An American-one of 192 every day-dies of a drug overdose. The poison in his veins flowed across the Mexican border. A brave police officer and father, Corporal Ronil Singh of California, is shot dead the day after Christmas. His killer snuck into the country illegally. We have failed to protect our border, as any sovereign nation must, and our people are dying because of it.

Cotton continued:

The president has declared a national emergency because of this crisis. Yet the administration’s sensible, long overdue efforts to secure the border have been met only by howls of outrage from the Democratic Party and its media wing. . .The minority leader called the president’s emergency declaration “a lawless act” that showed “naked contempt for the rule of law.” Other members of the self-styled “Resistance” have compared the president to Hitler.

Curious, overheated claims, I have to say. To be “lawless,” after all, one must act outside the law. Yet the president’s critics don’t even bother making that case, probably because they don’t have much of one to make. The president isn’t purporting to invoke his inherent executive powers under Article II of the Constitution. He doesn’t even claim to defend his constitutional prerogatives from legislative encroachment.

On the contrary, he is only exercising the statutory authority delegated to him by us. By this very body: the United States Congress. More than half of the $8.1 billion the president is using to build the wall and secure the border comes from non-emergency statutes passed by Congress. The remainder comes from an explicit delegation of various powers to the president in the event of a national emergency, just like the one that the president has declared, which we also delegated him the authority to do. I should add that the National Emergencies Act passed nearly unanimously, with only five no votes in the House.

(Emphasis added)

Like Sasse, Cotton is “sympathetic to arguments that the National Emergencies Act is too broad and gives the executive branch too much power.” But the remedy lies in fixing the Act, not in blocking the president from relying on it. As Cotton put it:

Believe me, Congress has ceded too much power to the executive for more than a century, expanding an administrative state that increasingly deprives our people of a meaningful say in their government. So I invite my Democratic colleagues to reconsider the wisdom of this path. Maybe we can reform the EPA. Perhaps we can require up-or-down votes in Congress to approve big regulations so politicians can show some accountability for once.

I’m ready for those debates. Believe me, I’m ready. But in the meantime, don’t pretend we didn’t delegate all these powers, or that it’s lawless for the executive to use laws we passed, just because you deplore him.

(Emphasis added)