It is generally assumed by every observer — including the president himself — that his national emergency declaration will be snared in the courts for a while, at least initially, and perhaps until the case reaches the Supreme Court. But there is another avenue whereby Trump’s effort to move money into his border wall project could be stopped: a joint congressional resolution disapproving of the declaration.
The 1976 National Emergencies Act under which Trump has made his declaration originally provided for a House legislative veto that could terminate any particular emergency. But in 1983 the Supreme Court declared such legislative vetoes a violation of the separation of powers, so now, Congress must past a joint resolution to force the end of an emergency, and the president can veto it.
Speaker of the House Nancy Pelosi and Senate Democratic leader Chuck Schumer have made it clear that a resolution of disapproval will be among the weapons Democrats will deploy to fight the emergency declaration; a draft resolution is already being circulated by representatives Joaquin Castro of Texas and Alexandria Ocasio-Cortez of New York. It is generally assumed that such a resolution will clear the House easily, perhaps with some Republican support (particularly among pro-military conservatives concerned about the precedent Trump is setting for raids on military construction projects). And the Hill counts no fewer than ten Senate Republicans (Susan Collins, Lisa Murkowski, Thom Tillis, Lamar Alexander, Cory Gardner, Marco Rubio, Mitt Romney, Mike Lee, Jerry Moran, and Rand Paul) who have given enough indications that they disagree with Trump’s action to make them likely candidates for votes in favor of a disapproval resolution.
But even if all ten split with Trump and all 47 Democrats vote for the resolution as well, they will still be nine votes short of the two-thirds majority necessary to override a presidential veto, which the White House has made clear that Trump will issue (as his first veto, actually) if necessary.
So Congress won’t be able to end the declared emergency through legislation. But the fight and any Republican defections would be sufficiently embarrassing to Trump and to the GOP that Democrats will pursue this avenue aggressively.
