On Thursday, prior to the Senate’s 59-41 vote against President Trump’s emergency declaration for border wall funding, Sen. Susan Collins (R-ME) detailed the reasoning behind her vote (and the votes of 11 other Republican members):
By declaring a national emergency, the President’s action comes into direct conflict with Congress’ authority to determine the appropriation of funds – a power vested in Congress by the framers of our Constitution in Article 1, Section IX. That is why this issue is not about strengthening our border security, a goal that I support and have voted to advance. Rather, Mr. President, it is a solemn occasion involving whether or not this body will stand up for its institutional prerogatives and will support the separation of powers enshrined in our Constitution.
Collins spoke about the way in which “the courts have determined the boundaries of presidential authority, vis-a-vis Congress,” using a very specific case regarding presidential seizure of property. That case was Youngstown Sheet & Tube Co. v. Sawyer, which was decided in 1952:
As Justice Robert Jackson explained in his profoundly influential concurrence in that case, the question of whether a President’s actions are constitutionally valid should be determined by examining the source of the President’s authority…
Collins continued, noting that Trump’s National Emergencies Act fails to fulfill a “common sense” test used by a former president:
Now, the President rests his declaration on the National Emergencies Act, and that act fails to define precisely what constitutes an emergency, but there is a commonsense rule that we can apply. It is a five-part test that was used by the Office of Management and Budget under former President George Herbert Walker Bush to determine whether or not requested funding merited an emergency designation under our budget rules. Under that test, a spending request was designated as an emergency only if the need for spending met a five-part test. It had to be necessary, sudden, urgent, unforeseen, and not permanent. Now, whether or not one agrees with President Trump that more should be done to secure our southern border – and I do agree with him on that goal – his decision to fund a border wall through a national emergency declaration would never pass all of this five-part test.
Collins also expressed concern that the declaration would take funding from “critical military construction projects,” although none have been named as of publication.
She concluded with a silent point, saying that this vote is not about whether or not one desires more advanced border security, but whether or not the president should have “the power of the purse,” which is expressly granted to Congress in Article I, section 9, clause 7 of the Constitution:
Let me emphasize once again that the question presented by this resolution is not whether you’re for a border wall or against a border wall. It is not whether you believe that border security should be strengthened or whether it is sufficient. It is not whether or not we support or oppose President Trump. Rather, the question is a far more fundamental and significant one. The question is this: do we want the executive branch now or in the future to hold the power of the purse – a power that the framers deliberately entrusted to Congress? We must stand up and defend Congress’ institutional powers as the framers intended that we would, even when doing so is inconvenient or goes against the outcome that we might prefer. I urge my colleagues to support the resolution of disapproval and our Constitution.
Many of the president’s supporters have expressed anger that 12 Republican senators would “side with the Democrats” on the emergency declaration, but Sen. Collins offers a expert analysis of what their votes actually mean.
The Republican senators who voted to block Trump’s emergency declaration are Lamar Alexander (TN), Roy Blunt (MO), Susan Collins (ME), Mike Lee (UT), Jerry Moran (KS), Lisa Murkowski (AK), Rand Paul (KY), Rob Portman (OH), Mitt Romney (UT), Marco Rubio (FL), Pat Toomey (PA), and Roger Wicker (MS).
Sen. Mike Lee (R-UT) said of the vote: “For decades, Congress has been giving far too much legislative power to the executive branch. While there was attention on the issue I had hoped the ARTICLE ONE Act could begin to take that power back. Unfortunately, it appears the bill does not have an immediate path forward, so I will be voting to terminate the latest emergency declaration. I hope this legislation will serve as a starting point for future work on this very important issue.”
Sen. Rand Paul (R-KY) said: “I stand with President Trump on the need for a border wall and stronger border security, but the Constitution clearly states that money cannot be spent unless Congress has passed a law to do so.”
The senator from Kentucky also offered his own solution for funding border security: the Border Enforcement, Security, And Funding Enhancement (BE SAFE) Act.
President Trump vetoed the block on Friday.