The US Senate is expected to pass a resolution to reject a national emergency declaration by president Trump, due to the support of Kentucky Senator Rand Paul.
With Democrats as the minority in the Senate, effectively 47 to 53, they needed four Republicans to support a resolution against Trump’s emergency declaration. Besides Paul, Republican Senators Susan Collins of Maine, Lisa Murkowski of Alaska and Thom Tillis of North Carolina will also vote against the emergency declaration.
After the 35-day shutdown ended without Trump getting funding for his border wall, the president stated he would use a national emergency declaration to get the funding he wanted to build on the US southern border.
Though a resolution blocking Trump’s emergency declaration may pass in Congress, Trump has said he will veto the resolution, meaning it will need to be overridden by a two-thirds majority in both the House and Senate. While the resolution has majority support, it is unlikely to have a super majority needed to override a veto.
It is unclear what Democrats will do if the resolution gets vetoed, but House majority leader Nancy Pelosi has vowed to fight on through the veto and try to garner enough votes to override Trump. If the Democrats are unable to get enough votes to stop a veto, it is possible the courts would stop Trump’s emergency declaration. After Trump declared a national emergency, several advocacy groups, such as the American Civil Liberties Union and Public Citizen filed lawsuits to try and stop the order, though it is unclear what the courts will decide.
It is most likely that if the declaration enters the courts, it will eventually make its way to the Supreme Court, which will pass final judgement. The president has stated that he expects the declaration to make its way to the Supreme Court, and felt it would be approved, though others, such as Rand Paul, have voiced doubts. The argument in court will likely be over whether the declaration counts as an emergency and perhaps whether Trump has the power to do so in the first place.
The declaration uses the National Emergencies Act, passed in 1976, to give the president the ability to appropriate funds in a way that he sees fit, for whatever purpose. In this case, he is using money from various sources, including $3.6 billion from the Pentagon in military construction funds and $8 billion for border security – more than the $5.7 billion he asked for to end the 35-day shutdown.
The statute Trump is using to declare a national emergency is broad in the power it grants and states that the emergency does not have to be anything specific, and can be whatever the president wishes. It is possible the courts feel that by allowing Trump the power to do as he wants with federal money, it may be a violation of the constitutional separation of powers, as traditionally Congress controls the purse.
It is also possible the courts will decide that because Congress passed the law with vague language, then it is up to Congress to clarify the language, and will let the declaration proceed until Congress changes the law.