WASHINGTON ― The very first veto of Donald Trump’s presidency likely will be to protect his “national emergency” to fund his border wall ― thereby forcing congressional Republicans to choose between supporting him or defending their own constitutional powers.
The House has already passed legislation to end Trump’s Feb. 15 declaration that he says permits him to divert money appropriated for unrelated military construction projects to a southern border wall that he repeatedly promised Mexico would pay for. The Senate will likely pass the bill next week with as many as a dozen Republican votes in addition to the 47 Democrats.
Trump has already promised a veto, which would then return the question to Congress for a potential veto override.
“If the veto is sustained, it sends a message of a party in Congress that now consistently puts obedience to the ‘Dear Leader’ over its own responsibilities to the country,” said Norman Ornstein, a congressional scholar at the conservative American Enterprise Institute.
Trump’s White House did not respond to queries from HuffPost regarding the veto threat.
Former Massachusetts Gov. Bill Weld, who is weighing a run against Trump in the 2020 Republican primaries, said a veto would offer further evidence of Trump’s unfitness for the job. “For years Republicans criticized President Obama for executive overreach and abuse of executive power,” Weld said. “It is inexcusable now that so many Republicans in Washington are standing in silence as this president does the same thing. Our party must never forget the principles upon which we were founded, including an adherence to the constitutional separation of powers.”
Trump and his allies have tried to make his declaration seem routine and in keeping with previous presidents’ actions. In a Feb. 26 veto threat, Trump’s Office of Management and Budget wrote: “This is the same authority that President George W. Bush and President Barack Obama used to undertake more than 18 different military construction projects between 2001 and 2013.”
However, none of those earlier emergency declarations ― or any of the others going back to the 1976 passage of the National Emergencies Act, for that matter ― involved the president contravening a policy or an appropriation level specifically set by Congress. Trump is the first to declare an “emergency” over his inability to persuade Congress to pay for a priority of his ― a priority that during his campaign he promised many hundreds of times that Mexico would pay for.
Making a congressional disapproval of that declaration the target of his first veto in 25 months in office would be a powerful statement, Ornstein said. “It sends a message of reckless disregard for the fundamental norms of governance in our political system,” he said.
Rep. Thomas Massie (Ky.), one of 13 House Republicans who voted with Democrats to overturn Trump’s declaration, pointed out on Twitter that Trump himself on 12 separate occasions signed into law spending bills that did not contain money for his wall, rather than vetoing them as he could have.
Indeed, a review of the Trump administration’s own documents shows that Trump did not become particularly interested in securing several billions of dollars for his border wall until Fox News and talk radio hosts started criticizing him last March for failing to get that funding.
Trump’s OMB issued a statement on March 22, 2018, praising the “$1.6 billion for physical barriers and associated technology along the Southwest border.” That night, Fox News’ evening personalities attacked Trump for preparing to sign a $1.3 trillion spending bill that included no money to build his long-promised wall. Trump threatened the next morning to veto the bill, but wound up signing it anyway.
At about the same time, Trump’s Department of Homeland Security requested from Congress for the following, 2019 budget year that same amount: “$1.6 billion for 65 miles of new border wall construction in the Rio Grande Valley Sector.”
Only after Democrats won 40 House seats in November’s midterm elections, enough to take control of the chamber this January, did Trump begin demanding Congress give him $5.7 billion for his wall.
Republicans who controlled both houses of Congress during his first two years did not want to spend that much money on Trump’s pet project, and new House Speaker Nancy Pelosi (D-Calif.) has strongly opposed it from the start.
Elizabeth Goitein, an expert on national emergencies at the Brennan Center for Justice, said that Trump’s promised veto “shows him for the extremist that he is,” but that the GOP-led Senate’s vote to block him would be significant nevertheless, even if there are not enough Republicans willing to override the veto.
“The Senate is going to rebuke Trump over this emergency. That is a powerful statement,” she said.
All but a handful of the five dozen emergency declarations by previous presidents over the past four decades have imposed trade restrictions or other economic sanctions against nations for their aggressive behavior and human rights abuses.
A May 22, 1997, declaration by Bill Clinton prohibited new investment in Burma. An April 3, 2014, declaration by Barack Obama imposed sanctions on leaders of South Sudan. The very first emergency — which is still in place to this day — was declared by Jimmy Carter to impose sanctions on Iran after the 1979 revolution.
Only a few of the declarations have dealt with policies other than targeted sanctions. One, declared by Ronald Reagan in 1983, reinstated a ban on the export of technologies that could be used for military purposes. Congress had allowed the ban to lapse, but did not oppose Reagan’s use of the Emergencies Act to put it back into force.
Another came in 2005, when George W. Bush, without technically declaring an emergency, decreed the suspension of a requirement to pay workers involved in the Hurricane Katrina recovery a certain minimum wage. Democrats and some Republicans did object to that one, and set a vote in the House to disapprove it. Bush rescinded his decree the day before the scheduled vote.
Not one of the previous emergencies, however, did anything close to what Trump is trying to do: pay for a project not only without Congress’ approval, but after Congress has specifically rejected his request several times.
What action his three-week-old declaration has set in motion, though, remains an open question. As of Tuesday, the Department of Defense, whose construction projects would be raided to pay for the wall, still had not received a list of proposed items from DHS.
“Once DHS provides a list of the projects they request assistance on, the secretary will determine if DOD can support,” a Pentagon official said on condition of anonymity. “If DOD supports, then we’ll be able to start construction.”
Goitein said the slow pace is a further indication that those who have separately filed lawsuits to block the declaration have a good case. “Everywhere you look, there’s evidence that this isn’t a real emergency,” she said.