Between Racists and the Constitution: Trump’s Fake Emergency is a Disaster for Republicans

Fun fact: there is no declared border emergency in effect right now. Don’t believe me? Go check.

Despite Donald Trump’s maniacal presser today, no emergency powers can actually be vested in the president until he specifies just what provisions of law he plans to act under for this “emergency” and publishes it in the federal register. Trump’s presser was a lot of mental gymnastics, but during it, he did not touch the actual legal process that he would need to follow for the emergency declaration (before, you know, it is blocked in the courts). The National Emergencies Act, enacted in 1976 after another president had decided he was king and modified in 1985, provides:

When the President declares a national emergency, no powers or authorities made available by statute for use in the event of an emergency shall be exercised unless and until the President specifies the provisions of law under which he proposes that he, or other officers will act.

There are reports floating around that he would try to draw funds from appropriations Congress designated for the Pentagon and Treasury totaling $8 billion to fund his vanity project, but there is no actual concrete proposal from the White House yet.

But even when the White House does concoct the legal steps required for Trump to be able to exercise any emergency powers at all, Congress can doom his plan.

I’m not talking about courts, where the argument that a president cannot simply use emergency powers to fund projects Congress has been asked to fund and refused to is likely to hold sway. I am talking about the fact that House Democrats hold a lot of cards in the legislative process even as things go through the courts.

The National Emergencies Act gives Congress the right and the responsibility to review presidential declarations of emergency, as well as to cancel and oversee them. In fact, Congress has to consider the matter of termination every six months at the most, and once one chamber of Congress passes a resolution in this respect, the other has no choice, and a maximum of 18 calendar days, to vote.

Yes, the resolution would still need Trump’s signature to become law - or it will require a veto override. That’s not a bad thing in this case. It would give Nancy Pelosi and Chuch Schumer two different opportunities to put Republicans on the record.

Plenty of Republican members of the House and the Senate have decried Trump’s move to declare an emergency in order to build a border wall - if only because the precedence it sets terrifies them about what a future Democratic president might to do if she (fine, or he) is unable to get Congress to pay for an ambitious plan to confront climate change, deal with gun violence, or pay for health care.

But will they actually vote to protect the Constitutional balance of power, or will they simply back up Donald Trump and surrender to their racist, xenophobic base? I quite suspect it would be the latter, but Democrats win either way. If, as I expect, Republicans in Congress fail to stand up to Trump and override his veto, the deeply unpopular wall - which probably won’t be built anyway with the court challenges to both the emergency and from property owners whose land would have to be seized to physically build the wall - will doom many of their re-elections in 2020. If they do stand up to Trump in the name of Constitutional government, they would be embarrassing the president of their own party right in the middle of an election cycle. And, of course, the emergency declaration will have been canceled.

Republicans have no good options here.

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