Senate Republicans had a “robust” discussion behind closed doors Tuesday with Vice President Pence and Justice Department officials on the legality of President Trump’s national emergency declaration, according to a senator who participated.
“We talked about the statutory basis … for an emergency, we talked about the constitutional basis, we talked about the issue of Madisonian separation of powers, we talked about the factual basis – there was a very robust discussion,” Sen. John Kennedy (R-La.) told reporters following the nearly two-hour lunch.
“It reminded me a lot of federal courts or constitutional law classes in law school,” added Kennedy, a member of the Judiciary Committee.
Sen. Richard Shelby (R-Ala.) declined to characterize the discussion as contentious but acknowledged differing points of view over the president’s move to sidestep Congress in an effort to reallocate funds for a barrier at the U.S.-Mexico border.
“I think some people showed there were different voices and different views whether the president should have called a national emergency, but I didn’t know how many that was – I didn’t count them,” said Shelby, the chairman of the Appropriations Committee.
Kennedy wouldn’t predict how many Republicans would end up voting for a resolution to block Trump’s emergency declaration. If all Democrats vote for the resolution as expected, they would need just four Republicans to back the measure for it to pass.
At least three GOP senators – Tom Tillis (N.C.), Lisa Murkowski (Alaska) and Susan Collins (Maine) – plan to vote with Democrats to block the president’s declaration once the House passes the privileged resolution as expected on Tuesday evening.
In a rare hallway exchange, Senate Majority Leader Mitch McConnell (R-Ky.) told reporters Tuesday that the upper chamber would take up the House-passed resolution in the “next few weeks.”
The president has vowed to veto the measure if it pass both chambers, and any Trump veto would likely be sustained.
Overcoming a veto would require a two-thirds majority in both chambers: 290 votes in the Democratic-controlled House and 67 in the GOP-led Senate.
Shelby predicted that the resolution “probably will pass” in the Senate but added, “I believe the president would veto it and we will sustain his veto.”
While most Republicans back Trump’s policy to build a wall along the United States’ southern border, they disagree over the president’s unilateral emergency declaration to build it without specific congressional authorization.
Kennedy said that Senate Republicans discussed a “comparison between the president’s national emergency declaration with respect to the border and President Obama’s DACA executive order” in terms of executive overreach.
“There is a distinction – President Obama, when he issued the executive order, by his own admission on DACA, had no statutory basis or constitutional basis for doing it,” Kennedy said.
He argued that Trump does have statutory authority for his declaration, though said the Senate has not seen the official statutes that Trump’s order is based on.
Others are concerned that Trump overstepped his powers as laid out in the Constitution, which grants Congress the “power of the purse.”
“It endangers what happens in the future – you could have a Democratic president and that Democratic president could then just say something that he or she wants and declare it an emergency to try to get around the process of the Congress when the Constitution is clear that appropriations – the budget, the pursestrings – is within our purview,” Democratic Rep. Greg Meeks (N.Y.) told Hill.TV before the House voted on the measure Tuesday evening.
But some Republicans argue that the president isn’t spending money that has not already been authorized – he’s simply moving it around to pay for something deemed an emergency.
“Just transferring money from some of our defense budget, mil-con, construction, etc we feel like there’s enough room in there to be able to make the case – anything new to that, that will be an issue,” Rep. Mark Walker (R-N.C.), a member of House GOP leadership, explained in an interview with Hill.TV.
“You can make the case legitimately that this is a national emergency,” Walker said following a conversation Tuesday morning with fellow GOP Rep. Adam Kinzinger (Ill.).
Walker said Kinzinger, a pilot in the National Guard, has “been flying over the border the last two weeks doing surveillance – he has seen the human trafficking – he has seen the drug culture that’s existing there, the amount of influx last week … another 115 pounds of fentanyl was discovered at the border not just at the ports of entry.”
For his part, Kennedy said he believes “there is an emergency on the southern border, particularly in terms of unaccompanied minors and drugs and families coming in; I think the president has statutory authority.”
While Kennedy plans to “support the president,” he intends to “see the final order and I want to read it and study it” before making a final decision.
– Molly Hooper
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