Shutdown averted, but Trump emergency order rattles Hill

By Geof Koss | 02/15/2019 07:22 AM EST

The president will announce his intentions in a Rose Garden address this morning. Members on Capitol Hill are ready to fight back with legislation and litigation.

Senate Majority Leader Mitch McConnell (R-Ky.) yesterday said he would support the president's decision to use emergency powers to fund a border wall.

Senate Majority Leader Mitch McConnell (R-Ky.) yesterday said he would support the president's decision to use emergency powers to fund a border wall. Ting Shen Xinhua News Agency/Newscom

Lawmakers breathed a sigh of relief yesterday after heading off another government shutdown, but any relief was quickly overshadowed by widespread concerns over President Trump’s vow to bypass Congress and secure funding for the border wall by emergency declaration.

The House last night voted 300-128 to send a seven-bill spending package to Trump, just hours after the Senate passed the measure (E&E News PM, Feb. 14).

While the president’s announcement that he would sign the legislation avoids a repeat of last month’s 35-day partial government shutdown, lawmakers from both parties are shaken by the emergency plan, which the president is expected to announce this morning in a Rose Garden address.


Following the Senate vote, it became apparent that even the most senior members of Congress were in the dark about the White House’s intentions.

Sen. John Cornyn (R-Texas), a senior member of leadership, said he didn’t know what Majority Leader Mitch McConnell and Trump discussed before the Kentucky Republican announced he would support an emergency declaration.

"You know Sen. McConnell keeps his cards close to the vest; he hasn’t told me," Cornyn told reporters. "Maybe he will at some point."

Members of both parties expressed worry about the precedent Trump’s declaration could set for future presidents, including fears about overriding Congress’ power of the purse.

Climate parallel

Sen. Marco Rubio (R-Fla.) voiced a growing concern among conservatives that a future Democratic president could assert broad powers by declaring an emergency over climate change.

"Today’s national emergency is border security," Rubio said in a statement. "But a future president may use this exact same tactic to impose the Green New Deal."

He said, "I will wait to see what statutory or constitutional power the President relies on to justify such a declaration before making any definitive statement. But I am skeptical it will be something I can support."

Sen. Roy Blunt (R-Mo.) said he would reserve judgement until he learned which powers Trump would invoke.

"Let’s see exactly what he does and exactly how he does it," said Blunt, an appropriator. He noted that Trump was aware that declaring an emergency could free up "a lot more money."

Cornyn said it was unclear if Trump would invoke existing statutory authority, or declare "some inherent authority as president of the United States."

He acknowledged that the president was "not happy" that the spending deal would set aside less money for border barriers than he wanted.

Reports indicate the president wants to cobble together money from a variety of sources, including the military construction account.

Sen. Susan Collins (R-Maine), another top appropriator, questioned whether "the National Emergencies Act contemplated a president repurposing billions of dollars outside of the normal appropriations process."

"I also believe it will be challenged in court and it’s of dubious constitutionality," she told reporters. "It undermines the role of Congress and the appropriations process."

Disapproval resolution

House Judiciary Chairman Jerry Nadler (D-N.Y.)
said Democrats would vote on a disapproval resolution to block Trump’s emergency.

Should that pass the House, Senate Republicans would be unable to block the measure from a vote in that chamber.

Cornyn declined to say if he would vote for such a measure. "That’s a few moves down the chess board," he said.

Cornyn noted, however, the vocal opposition of much of Texas’ delegation and its Republican governor to reports that the White House was eyeing disaster relief funds to pay for the wall.

Nancy Pelosi. Photo credit: C-SPAN
House Speaker Nancy Pelosi (D-Calif.) talking with reporters yesterday. | C-SPAN

Furthermore, he said he feared court action would leave billions of dollars in federal funds "balled up" until litigation is resolved.

Rep. Nydia Velázquez (D-N.Y.), who was born in Puerto Rico, told E&E News there is $13 billion in relief projects for the island that could be at risk by an emergency declaration.

She said Democrats are discussing legal options for litigation against Trump, including on constitutional grounds.

"It’s not only about the money taken away from people that have suffered and are victims of disaster," Velázquez said last night.

"This is a precedent and is a violation of Article I of our Constitution," she said. "We in Congress hold the power of the purse, and every, every member, Republican and Democrat alike, should be outraged by this type of action by the president."

One senator who was not outraged was Senate Appropriations Chairman Richard Shelby (R-Ala.), who has spent weeks negotiating with Democrats and Trump personally.

"I’m not concerned at all," Shelby told E&E News after the Senate vote yesterday. "I’ve said all along that the president under the Constitution has express powers and implied powers, plus statutory powers."

Referencing Trump’s famous indecision on major policy matters, Sen. Chris Coons (D-Del.) said Congress won’t know "what the president’s actually going to sign until he does it."

"If we’ve learned anything, it’s that," he told reporters.

Reporter Kellie Lunney contributed.