| March 14, 2019 04:20 PM
Republicans who spent the Obama administration warning about the expansion of executive power on Thursday made fools of themselves by overwhelmingly backing President Trump’s emergency declaration in the name of building a border wall. In the process, they did long-term damage to the conservative cause.
To be sure, the Senate voted 59-41 to disapprove of Trump’s declaration, and 12 Republicans took a principled stand. That Trump’s action was given the thumbs down by majorities in both chambers of Congress could bolster court cases challenging Trump’s executive action.
But the measure will now be vetoed by Trump, and there aren’t enough votes to overturn his veto, so he’ll be able to move forward, pending litigation.
What’s pathetic is that the overwhelming majority of Republicans signed off on the move. While consistent constitutional conservatives including Sens. Mike Lee and Rand Paul held firm, other conservatives who often warn about the erosion of checks on executive power, prominently Sens. Ted Cruz and Ben Sasse, caved. Thom Tillis, who actually wrote an op-ed outlining why he would vote against the measure, changed his mind when it came to vote.
In explaining away his decision, Sasse said: “We have an obvious crisis at the border everyone who takes an honest look at the spiking drug and human trafficking numbers knows this and the President has a legal path to a rapid response under the National Emergencies Act of 1976 (NEA). I think that law is overly broad and I want to fix it, but at present Nancy Pelosi doesn’t, so I am therefore voting against her politically motivated resolution. As a constitutional conservative, I believe that the NEA currently on the books should be narrowed considerably. That’s why I’m an original sponsor of Senator Lee’s legislation, and it is why I have repeatedly gone to the White House to seek support for NEA reform.”
This is a cop-out. Nothing in the world would prevent Sasse from both voting to disapprove of this specific invocation of emergency powers while also advocating for broader reforms. He is setting up a classic false choice. Sasse has in the past lamented the tendency of people to put their preferred outcomes over respecting process and institutional checks on power, and yet here he is, embracing a move because of the policy outcome.
Even if you think Trump’s actions are legal (which is debatable), it still would represent a novel use of emergency powers to advance a domestic priority after the president was repeatedly and explicitly denied it by Congress. Senators who argue against arbitrary rule shouldn’t endorse the idea of stretching the boundaries in the direction of expanding power of the executive. In the long run, the only people who will lose are those who want to limit the size and scope of government.
As I noted before, it’s quite likely that the legal process over the emergency will spill into next year and that it won’t be resolved in time to actually build a wall before the 2020 election. So in the end, Trump and those Republicans who embraced him may have just helped expand executive powers just in time for a Democratic president to use them, without even having a border wall to show for it.