On Washington: In Wielding Emergency Powers, Trump Paves a Dangerous Path Forward

On Washington

In Wielding Emergency Powers, Trump Paves a Dangerous Path Forward

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President Trump at a rally on Monday in El Paso.CreditCreditSarah Silbiger/The New York Times

WASHINGTON — Outraged House Republicans sued President Barack Obama in 2014 for spending billions of federal dollars without congressional approval — and won. Now many House and Senate Republicans could side with President Trump for doing what they saw as a grave abuse of power by Mr. Obama — circumventing an unwilling Congress in a spending dispute.

The power of the purse is paramount for Congress. The constitutional edict that “no money shall be drawn from the Treasury but in consequence of appropriations made by law” gives Congress the upper hand over the executive branch when it comes to how federal funds are allocated and disbursed. The president can veto spending bills if he is dissatisfied, but is not supposed to rewrite them or defy Congress and spend money in ways it did not approve.

Many in both parties now say that a presidential decision to act unilaterally and fund construction for a border wall through an emergency declaration would establish a dangerous new model, encouraging presidents thwarted by Congress to simply cite such a crisis to spend dollars however and wherever they pleased.

It would represent another weakening of the authority of Congress in a steady ceding of power to the executive branch — a trend that Republicans have said they want to reverse and that they railed against when Mr. Obama used executive orders to act on issues such as immigration and health care.

“As I’ve said many times, I have concerns about the precedent that could be set with the use of emergency action to re-appropriate funds,” said Senator Charles E. Grassley of Iowa, the senior Republican in the Senate. “Accordingly, I will study the president’s declaration closely.”

Many other Republicans expressed similar reservations. But Senator Mitch McConnell of Kentucky, the majority leader, who had suggested misgivings of his own, said he would back Mr. Trump’s emergency declaration, as did others who said the president had no other option given the bipartisan spending compromise that denied him money for his coveted wall.

“From Day 1, President Trump has made it clear he’s ready to address the crisis at the southern border, whether or not Congress works with him,” said Senator Kevin Cramer, a newly elected Republican from North Dakota. “While Democratic leadership has refused to tackle this issue, I stand with President Trump in favor of funding border security as we head into budget talks for the upcoming fiscal year.”

That willingness to stand with the president at the expense of their own institution underscores that the border wall remains a powerful symbol with Republican voters and suggests Republicans would rather risk a troubling precedent than run afoul of Mr. Trump, who made the wall his signature campaign promise in 2016, and his constituency. It also shows how deeply lawmakers wanted to avoid another calamitous shutdown.

But Republicans also fear that once Mr. Trump takes the emergency route, future Democratic presidents will follow suit and declare an emergency to deal with issues dear to their hearts, be it climate change, gun safety, immigration or health care. Republicans won’t be left with much room to complain should that happen.

Speaker Nancy Pelosi said as much on Thursday as she warned Republicans of the dangers of the president’s plan.

“I’m not advocating for any president doing an end run around Congress,” she said. “I’m just saying that the Republicans should have some dismay about the door that they are opening, the threshold they are crossing.”

Ms. Pelosi has a point. In the ever escalating partisan fights in Congress, the party that considers itself wronged by raw exercise of power typically seeks quick revenge when it has the opportunity to do so. Cases in point: the decision by Democrats in 2013 to eliminate the 60-vote threshold for filibusters on most nominations, the Republican blockade in 2016 against Judge Merrick B. Garland’s nomination to the Supreme Court and the elimination in 2017 by Republicans of the 60-vote threshold on Supreme Court nominations.

In the Republican case against the Obama administration’s spending, a lawsuit initiated by John A. Boehner, the speaker at the time, claimed that the executive branch was spending more than $ 130 billion in subsidies under the Affordable Care Act that Congress had never agreed to spend. In a surprising decision in 2015, Judge Rosemary M. Collyer of Federal District Court in Washington sided with Republicans and said that if the House could not sue to protect its appropriations power, it was in big trouble.

“The House of Representatives as an institution would suffer a concrete, particularized injury if the executive were able to draw funds from the Treasury without a valid appropriation,” she wrote in her ruling. The case was later essentially made moot when Mr. Trump took over from Mr. Obama, but the ruling against the White House stood.

The border wall case is somewhat different because the White House would be using its declaration of an emergency as a justification for steering federal dollars to the wall against the wishes of Congress. But Democrats and some Republicans insist there is no emergency in the sense that the law was intended to cover. They say such action by the president would be an unmistakable defiance of Congress, which made its views very clear in the spending legislation that did not provide the authority for the president to build the wall he wants.

“Congressional intent on this issue is very clear,” said Senator Chuck Schumer of New York, the Democratic leader. “The president’s wall has been before Congress several times and has never garnered enough votes to even merit consideration. For the president to declare an emergency now would be an unprecedented subversion of Congress’s constitutional prerogative.”

Like the health care dispute, the emergency declaration is virtually certain to end up in court.

Skeptical Republicans said they were awaiting the specifics of the declaration before making final judgments. But many were apprehensive, particularly members of the Appropriations Committee.

“I clearly have concerns about the idea that he can use an emergency declaration for this set of circumstances,” said Senator Roy Blunt, Republican of Missouri. “But let’s see what happens and how they do it.”

“For the president to repurpose unilaterally billions of dollars that have been appropriated by Congress for specific needs undermines the role of Congress and is of dubious constitutionality,” said Senator Susan Collins, Republican of Maine.

The president sees the emergency declaration as a way to get his way over a resistant Congress. But to many on Capitol Hill, it is the declaration itself that could become the emergency.

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