Trump will declare a national emergency. What happens next?

Democrats are fuming, and many members of Trump’s party are uneasy about the precedent that such a declaration will set. Lawmakers seeking to block the president have two paths — one in Congress, the other in the courts.

By Nicholas Fandos

In declaring a national emergency to try to build his long-promised border wall, President Donald Trump will invoke extraordinary and seldom-used authorities to bypass Congress’ constitutionally granted power of the purse.

Democrats are fuming, and many members of Trump’s party are uneasy about the precedent that such a declaration will set. Lawmakers seeking to block the president have two paths — one in Congress, the other in the courts.

Explained: Trump’s emergency, and what it means for his wall

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Border security deal faces vote in Congress

The U.S. Congress on Thursday is set to vote on legislation to avoid a partial government shutdown and end a dispute over border security that does not include President Donald Trump’s request for $5.7 billion to help build a wall on the U.S.-Mexico

Democrats, who control the House, will drive the opposition. Party leaders did not detail their plans Thursday, as they reviewed options and awaited the text of the president’s declaration. But outspoken senior lawmakers indicated that they will likely use both paths at once.

“He may want to talk to a good lawyer,” said Sen. Patrick J. Leahy of Vermont, the top Democrat on the Appropriations Committee.

Can Congress stop Trump from declaring an emergency?

No, Congress does not have the power to stop the president from declaring a national emergency. But when lawmakers granted the president emergency powers in the first place, they built a check into the law.

Under the National Emergencies Act, the House and the Senate can take up what is called a resolution of termination to end the emergency status if they believe the president is acting irresponsibly or the threat has dissipated. The House has signaled that it intends to do that in the coming weeks, and with a comfortable majority in the chamber, Democrats will most likely pass it.

“I will fully support the enactment of a joint resolution to terminate the president’s emergency declaration, in accordance with the process described in the National Emergencies Act, and intend to pursue all other available legal options,” said Rep. Jerrold Nadler of New York, chairman of the Judiciary Committee.

To keep a president’s party from bottling such a measure up, the law says that if one chamber passes such a resolution, the other one must bring it up for a vote within 18 days. Though Democrats are in the minority in the Senate, they would need only a handful of Republicans to join them to pass the resolution there and send it to Trump’s desk. It is easy to imagine a half-dozen or more Republican senators joining Democrats out of concern for the precedent that Trump’s declaration will set.

What would Trump do next?

As with any other bill that comes to the president’s desk, Trump can veto a joint congressional resolution terminating the national emergency, as long as it has not passed with supermajorities in both the House and the Senate.

Congress did not originally intend to give the president this recourse when it enacted the law during the post-Watergate reform era that has governed how and when presidents may invoke emergency-power statutes.

But the Supreme Court struck down what it calls legislative vetoes in 1983, ruling that for a congressional act to take legal effect, it must be presented to the president for signature or veto. Because it takes two-thirds of both chambers to override a veto, the ruling made it substantially harder for Congress to stop a president’s declaration.

How strong is opposition to a declaration in the House and the Senate?

This is the crucial question. Half a dozen or so Republicans made their disapproval of an emergency declaration clear Thursday.

“I don’t believe that the National Emergencies Act contemplated a president repurposing billions of dollars outside the normal appropriations process,” said Sen. Susan Collins, R-Maine. “I also believe it will be challenged in court and is of dubious constitutionality.”

Sen. Rand Paul, R-Ky., and an ally to the president on other issues, said a national emergency declaration of this sort ran counter to the separation of powers outlined in the Constitution. Sen. Patrick J. Toomey, R-Pa., agreed.

“My view is that this is better to be resolved through the legislative process,” he said.

Still, it is highly unlikely that Democrats can pick up enough Republican supporters in the House or the Senate to override Trump’s likely veto. The best case for the president’s opponents is that they show deep fissures among Republicans over the wall.

They could also try to build bipartisan support for legislation preventing Trump from drawing money for the wall from funds allocated by Congress for disaster relief.

Could Congress sue?

Here Democrats appear to have two choices. The House could either support a lawsuit challenging the emergency declaration brought by a third party or file a suit of its own.

There are questions about the House’s legal standing if it were to try to sue on its own. Regardless, a legal challenge is likely to tie up Trump’s efforts in court for an extended period of time.