Jurisprudence

The One Thing Republicans Could Do to Stop a National Emergency Declaration

William Barr.
William Barr.
Tasos Katopodis/Getty Images

Since the government shutdown ended late last week, Senate Republicans have been saying they are extremely worried about the possibility of a second one. The 35-day mishap, with its $11 billion price tag (much of which is not recoverable), redounded to the benefit of nobody, not even the president who forced it. And GOP senators are well aware that they might suffer consequences at the ballot box should it happen again. Some of them are on the record making impressive statements to that effect in the New York Times. (“Shutting down the government should be as off limits in budget negotiations as chemical warfare is in real warfare,” said Sen. Lamar Alexander of Tennessee. “I’ve said repeatedly throughout this process that government shutdowns are a bad idea,” said Sen. Rob Portman of Ohio. “This never should have happened,” said Sen. Lisa Murkowski, R-Alaska.) Indeed some are pushing new legislation to ensure that Donald Trump cannot shut down the government again in three weeks if he doesn’t get the wall he isn’t going to get. As for what will actually happen next, the president warned on Friday that if he didn’t get a “fair deal” on money for his wall by that Feb. 15 deadline, the government would close again, or he’d invoke emergency powers to try to build it.

So the only question remaining seems to be this—having made their positions against another shutdown clear, do Senate Republicans affirmatively want the president to go with his Door No. 2 and declare a national emergency in an effort to shift billions of dollars from disaster aid or other sources to build his wall anyhow? Unless the president just forgets the past six weeks happened, those appear to be the only two options, short of an unlikely Valentine’s Day deal. At least on principle, you might think the GOP is not that much more inclined to support a declaration of national emergency and a radical expansion of eminent domain powers than a second shutdown. They are both bad options. As Politico reported on Monday:

Senate Republicans loathe both options, but for now, they’d choose almost anything over another funding lapse.

As Sen. Mitt Romney (R-Utah) put it: “I don’t think we want to face another shutdown. And I certainly don’t think we want to have emergency action taken. So the president and Congress will have to come together.”

Maybe. Maybe there will be a big breakthrough in the coming week as the committee tasked with negotiating an agreement on border security attempts to resolve the impasse. But in the far likelier case that this doesn’t happen, do Republicans in the Senate who just got clobbered over the shutdown really want a declaration of national emergency to happen next? Several have already gone on the record to oppose such a thing. Romney told MSNBC, “I think that’s an action that would be taken in the most extreme circumstances, and hopefully, we don’t reach that.” North Carolina Sen. Thom Tillis told the Hill, “You can’t be in a national emergency forever. For us to totally secure the border, that’s a multiyear proposition.” Sen. Marco Rubio—who stands to lose hurricane-relief funding—tweeted, “I do not believe the White House will divert money from #Florida disaster recovery to fund border security. But if some reason they try, I will do everything I can to overturn such a decision.” Rubio has also said, “There’s some concern … about how [an emergency declaration] could be used by future presidents for other reasons.”

South Carolina Sen. Lindsey Graham had been emphatically opposed to an emergency declaration in early January. “I don’t know legally if you can do that. I think that’s a fallback position,” he said. “The best way is for the Congress to come back and do wall plus something else. I’ll be watching.” Two days later he tweeted, “Mr. President, declare a national emergency NOW. Build a wall NOW.”

This all brings us to William Barr, Donald Trump’s choice to be the new attorney general. On Tuesday, Barr’s vote was postponed by a week amid Senate Democrats’ concerns, which was expected, and Barr’s written response to questions about Trump’s emergency powers, which was not. In written follow-up answers to Senate Democrats’ questions about the power of the president to declare a national emergency to build his border wall, Barr declined to say what guidance he would offer the president. In response to a question from Connecticut Sen. Richard Blumenthal, Barr wrote that “I have not examined the facts and circumstances pertaining to security on the southern border with this issue in mind, and therefore, I am not in a position to further comment on what would constitute a national emergency.” Barr added that, were he to be confirmed, he’d ensure “that the Department’s advice on this subject is consistent with any applicable law.”

Now who even knows what’s really on the table, given that the president has variously insisted that he will “almost definitely” declare a national emergency to get his wall done, and then that he would not, and then, as he put it on Friday, “We’ll work with the Democrats and negotiate, and if we can’t do that, then we’ll do a—obviously we’ll do the emergency because that’s what it is. It’s a national emergency.” So. Things.

Given the amount of thinking lawyers have put into the question of presidential power to declare a national emergency at the border, it would be frankly somewhat amazing if Barr hasn’t given it any actual thought. If you are inclined to bone up, you should surely start here, (and then here, and also this, and this, and here, and many thousands of words suggesting that we are not presently in an emergency and also that the president cannot use eminent domain to toss people out of their ranches and churches and homes by simply saying there is one). Given the reality that many Americans are as opposed to a declaration of national emergency as they were to the shutdown, it might behoove Republicans in the Senate to find out whether the new attorney general plans to greenlight whatever power grab the president plans to arrogate to himself.

Apparently, though, nope, they’re cool. If Republican senators really wanted to stop this national emergency declaration from happening, all they would have to do is promise to veto any attorney general nominee, such as Barr, who refuses to reject the possibility. That’s it. Instead, the current plan appears to be that Senate Republicans will let the emergency declaration go forward, try to blame House Democrats, and then allow the question to be tied up for months and years in the courts, with setbacks blamed on “liberal judges.” Is it brave? No! Is it a bold declaration against unchecked executive overreach that will set an awful precedent whatever the outcome? No! Is it consistent with conservative and libertarian views of property rights and limited government? Also, no! And should the president declare his emergency, does anyone think the Senate will at any time check him, as the law, on its face, demands? No to that too!

Senate Republicans have no good option here between allowing another shutdown to happen and allowing the president to declare a national emergency without consequence. Moving calmly and deliberately toward the latter choice only because it’s the one that hasn’t yet been tested isn’t just shortsighted and cowardly. It’s Congress choosing again to do nothing to stop the president, and then claiming falsely that there is nothing they can do to stop him.