Opposition to President Trump’s emergency border declaration is snowballing in the Senate, forcing Majority Leader Mitch McConnell (R-Ky.) to scramble for a way to avoid a major embarrassment for the president.
While McConnell has long viewed a resolution of disapproval backed by Democrats as likely to pass the Senate, support for the measure is growing. Some senators and aides say they think it could get as many as 15 Republican votes, which would put it in striking distance of a veto-proof majority.
“Members of the Senate ought to have a real problem and not be flippant about allowing the president so blatantly to go around the Article I power of the purse. This is what separates us from the rest of the world. We have a rule of law,” said a GOP senator who put the high-water mark for Republican support at 15 senators.
New names surfacing as possible defectors on next week’s vote include Sens. Jerry Moran (Kan.), Todd Young (Ind.), Mitt Romney (Utah), Ben Sasse (Neb.), Ted Cruz (Texas), Mike Lee (Utah) and Ron Johnson (Wis.), who all have expressed constitutional concerns in recent days, say colleagues.
In the House, there’s little chance that opponents can get close to a two-thirds majority, but such a large Senate vote against Trump is something that GOP leaders and the White House would deeply love to prevent.
Two of McConnell’s top advisers, Sharon Soderstrom, his chief of staff, and Laura Dove, the majority secretary, are scouring the Senate’s rules and procedures to figure out whether it’s possible to vote on an alternative to the Democratic-sponsored resolution of disapproval.
Republican senators say they want to vote for a resolution that states the president should have sufficient funds for border security. But they also want it to express disapproval of the emergency declaration and amend the National Emergencies Act to require future emergency declarations to expire after a period of time unless Congress votes to approve them.
“I believe we should come up with a resolution or a piece of legislation that would express exactly how we feel, which is we support the president, we do need better barriers,” said Johnson, the chairman of the Senate Homeland Security Committee, after a meeting of the GOP conference Tuesday.
“At the same time, as members of Congress, we should jealously guard our constitutional authority, which has been given away by prior Congresses,” he added.
Sen. Pat Toomey (R-Pa.) is leading one promising effort within the GOP conference to put together a resolution that would express support for Trump having adequate funding for border security while also disapproving of his emergency declaration and possibly limiting future executive seizures of spending power.
A GOP senator said Young and Lee are also meeting with the parliamentarian on putting together a similar resolution.
“I think people want to find a way to give the president all the money he asked for but yet discourage the use of emergency declarations,” said Sen. John Cornyn (R-Texas).
But the effort faces multiple procedural hurdles. One question is whether such a resolution could provide any new funding for border security. Another is whether it would in fact have authority to amend the National Emergencies Act of 1976.
It is clear, however, that any alternative resolution would have to disapprove of and unwind Trump’s emergency declaration in order to have privileged status that would allow it to pass with a simple-majority vote.
Toomey declined Tuesday afternoon to comment on his proposal.
Republicans could possibly hold a vote on a nonprivileged resolution that does not expressly block Trump’s emergency declaration, but it would still allow a vote on the Democratic resolution of disapproval.
Republican senators heard presentations at their lunch meeting Tuesday from Homeland Security Secretary Kirstjen Nielsen and a senior Justice Department attorney justifying Trump’s emergency declaration.
Lawmakers said Nielsen made a compelling case that there’s a crisis at the Mexican border by noting that nearly 80,000 migrants crossed the border illegally last month, but that the legal arguments from the Justice lawyer failed to move conservatives such as Cruz and Lee.
The administration lawyer argued that Trump’s declaration is authorized by something passed by Congress, the National Emergencies Act, and is not merely being asserted by Congress, according to lawmakers who heard his presentation.
The attorney also tried to assuage concerns by suggesting that any money used through the emergency declaration would not go toward buying up private land to build border barriers.
Cruz says that differences of views remain between the administration and the Senate Republicans.
“We’re engaged in ongoing discussions with the administration,” he said. “The discussions are vigorous but it’s not productive to engage in those debates right now in the press.”
Lee is circulating a proposal to limit presidential emergency declarations to a period of 30 days, after which Congress would be required to vote to extend it any further, according to a Senate aide.
Sen. Lamar Alexander (R-Tenn.) said “most Republican senators believe” that Trump “should have sufficient funds to do border security.”
But, he said, “we do not like the [emergency] declaration because it gives the president the authority to spend money that Congress refused to spend, and that’s a violation of separation of powers.”
“We would like to amend the declaration of powers act to say declarations would expire after a period of time — say 60 days, 30 days, 90 days — unless a majority of Congress votes to approve it,” he added.