The winter's biggest fresh test of a functional democracy, the balance-of-powers fight between the executive and legislative branches over the border wall, now seems certain to get settled by the judicial branch.
Bipartisan majorities are now locked down in the Senate as well as the House to oppose President Donald Trump's declaration of a national emergency. Now that four Republicans (Kentucky's Rand Paul most recently) have come out to join the Democrats against the president, as many as eight more may well conclude it's best for them to also jump on that oppositional bandwagon. These Republicans will be concluding it's politically safer (or better for their senatorial contentment in the long haul) to put their professed fealty to rule-of-law ahead of their usual tribal loyalties.
Even if all of them do so – and the timing of the vote is not yet set – that's still not nearly enough to overcome what looms as their first veto of the Trump presidency. There's nothing close to a two-thirds majority for an override in the House, either, even if the number of Republican iconoclasts (13 on the initial vote) doubles in the second round.
Therefore, despite suffering a rare congressional rebuke and the embarrassment of unusual defections from lawmakers in his own party, Trump is going to end up gutting out a huge victory for expansive presidential power – if only temporarily. The federal court system, and ultimately the sharply divided Supreme Court, will settle the matter once and for all.
And the ruling will have much more lasting consequence than whether $4 billion in congressional appropriations decisions made last year get countermanded in order to finance approximately 55 miles of brocades along the Mexican border.
More importantly, the court will be asked to decide the limits of a president's power to set policies and spend money against the expressed will of Congress – including by declaring a national emergency that bipartisan majorities on Capitol Hill flatly declare does not exist. The justices will end up having to decide which power triumphs over the other, the legislative branch's power over the purse or the executive's powers to act in the name of protecting national security.
"The four current Democratic appointees historically have voted as a block consistently with the Democrats' political position on every controversial issue. I cannot think of anywhere they have broken ranks. They have used their brilliance to find arguments to support an ideological view. That means if just one of the Republican appointees on the court joins them, the president will lose the legal fight," Ron Sievert, a professor of national security and international law at the Bush School of Government at Texas A&M university, wrote this week.
Chief Justice John Roberts has sided with the liberal bloc on several of the most prominent cases of the past decade, he wrote, while Justice Samuel Alito is not always reliably conservative and Justices Neil Gorsuch and Brett Kavanaugh don't have a long enough paper trail on the court to make an easy prediction. "Thus, although a number of legal experts have written that they believe the president is on solid ground with his emergency order, I believe it could be a very hard case at the Supreme Court," Sievert concluded.
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