The Vote Against Trump’s National Emergency Border Wall Will Haunt Senate Republicans

Sens. Ben Sasse, Ted Cruz, Thom Tillis, and Lamar Alexander.
Sens. Ben Sasse, Ted Cruz, Thom Tillis, and Lamar Alexander had a tough choice to make. Photo illustration by Slate. Photos by Andrew Harnik - Pool/Getty Images, Chip Somodevilla/Getty Images, Alex Wong/Getty Images, and Chip Somodevilla/Getty Images.

On Wednesday night, three Republican senators walked into the White House and interrupted President Donald Trump’s dinner in a dramatic last-ditch effort at persuading him to let them off the hook from their duties as members of the legislative branch. “They discussed,” the Washington Post reported, “how to satisfy GOP concerns on the emergency declaration” to build a Southern border wall. And one final time, no agreement was reached.

With all other options exhausted, a strong—but not veto-proof—bipartisan majority on Thursday voted to terminate the president’s emergency declaration. The final vote was 59 to 41, with 12 Republicans joining all Democrats to rebuke the president’s decision. The resolution, which had already passed the House, will now head to the president’s desk. Judging by his post-vote tweet, which reads, “VETO!,” the president intends to veto the resolution.

The vote capped a month of division within the Senate GOP caucus that forced on party members an ugly choice between protecting their dignity and their president. Many of those senators created fresh electoral problems for themselves heading into election season as they chose between mitigating their primary and general election threats. And Trump is unlikely to forget which senators, as he put it with characteristic elegance, cast “a vote for Nancy Pelosi, Crime, and the Open Border Democrats!”

It was the day that, for months, Republican senators had worked to avoid.

During the shutdown, when Trump had first considered declaring a national emergency to loosen up funds he could repurpose for border wall construction, Senate Majority Leader Mitch McConnell met with him personally to beg him off. Under the National Emergencies Act, he explained, Democrats could force each chamber to vote on a resolution terminating the emergency, a vote that would attract weeks of attention and split his caucus. McConnell was successful, for a while, in getting Trump to hold back. But when the bipartisan Homeland Security funding agreement Congress reached last month didn’t offer Trump nearly the amount of money he wanted for the wall, he decided to declare the emergency after all. McConnell, needing him to sign the funding bill to prevent another shutdown, agreed to support the declaration.

A president has never used the National Emergencies Act to such a controversial end before, and Congress had some studying up to do on its termination powers. Yes, the Senate would have 18 days to vote on the measure once it passed the House. But could the Senate amend the resolution to make it more politically palatable to the Republican caucus? And to what extent?

“It’s an interesting question,” McConnell said last Monday. “It’s never been done before.”

But the Senate parliamentarian, as Sen. John Thune told Politico, was “applying a pretty tight filter” to which amendments would be considered “germane” to the resolution. And appealing the parliamentarian’s ruling—i.e., overriding the neutral arbiter’s read of Senate rules—wasn’t a precedent they were looking to set either. The resolution would have to be voted on more or less as they received it from the House.

With the amendment route closed off, some senators, in coordination with Vice President Mike Pence, tried to discuss another deal: Republican senators would vote against the termination resolution if the White House got on board with legislation, introduced this week by Utah Sen. Mike Lee, to amend the National Emergencies Act. Under Lee’s legislation, future emergencies would require an affirmative vote in Congress to proceed beyond 30 days. Under current law, terminating an emergency requires both passage in Congress and a presidential signature, or a legislative veto override.

The talks fell apart on Wednesday, though. Democrats mocked the legislation as “cover” for allowing the current, extremely controversial emergency declaration to stand, and House Speaker Nancy Pelosi said she wouldn’t bring it up for a vote in the House. And then Trump, himself, called Lee to reject the idea. It’s not surprising that Trump—or any president—would dismiss a piece of legislation transferring power from the executive to the legislative branch. It’s only surprising that some senators thought Trump might not.

The best Trump could offer these antsy senators was a tweet Thursday morning that he might support efforts to update the National Emergencies Act “at a later date.”

The only fence-sitting senator petrified enough for his own political survival to accept this vague reassurance was North Carolina’s Thom Tillis. In an act that the North Carolina Democratic Party might bring up a time or two during Tillis’ 2020 re-election campaign, Tillis said on the Senate floor that the tweet was good enough for him. He would vote against the disapproval resolution. Yes, this is the same Thom Tillis who wrote an op-ed several weeks ago explaining his constitutional duty to block Trump’s maneuver, just as he had argued against various executive actions taken by President Barack Obama. Tillis’ fire sale of his vote to Trump might have had something to do with the active recruitment for primary challengers against him in North Carolina.

Tillis isn’t the only senator who was doomed no matter which decision he made. Colorado Sen. Cory Gardner, the most vulnerable Republican up for re-election this cycle, voted to uphold the president’s emergency. That will help him through the primary while worsening his general election position. The same goes for Arizona Sen. Martha McSally and Iowa Sen. Joni Ernst. Nebraska Sen. Ben Sasse, whose only real electoral threat would be in a primary, voted with the president as well. It’s a sensible political choice, so long as he recognizes that he can never semi-plausibly deliver pious lectures again. Same goes for Texas Sen. Ted Cruz. It was these individual choices, each of which will have lingering electoral repercussions, that McConnell had tried to shield his caucus from having to make. It was why the senators went so far as to interrupt Trump’s dinner.

You would be forgiven for thinking that the purpose of being in the Senate majority is to set up votes on matters of consequence, like whether the president has the authority to steal money to fulfill a political promise. It’s not. The purpose of being in the Senate majority is to set up gotcha votes that unify your caucus and split the other side, providing fodder for the next campaign season. Here, because of the forced voting mechanism in the national emergency statute, the roles were reversed.

McConnell is eager to get back to the way it’s supposed to be. As soon as the vote on the disapproval resolution passed, the majority leader teed up the chamber’s next vote for when it returns from recess: S.J. Res. 8, more commonly known as the Green New Deal. When the Senate is back, it will be Democrats’ turn to squirm over a politically fraught vote. For vulnerable Republicans, though, it won’t erase the one that was taken on Thursday.