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The State of Reform
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Balance of Power

Powers in the balance thanks to wall ‘emergency’

Restoring some equilibrium among the executive, legislative and judicial branches is a central ingredient to reviving democratic normalcy. And the emergency wall declaration is creating one of the most consequential federal balance-of-power battles in modern times.

President Trump is the clear favorite, but his advantage as he pushes to build more border barriers is not prohibitive.

The president's cause could be slowed and eventually derailed by the federal courts, but that tussle might continue well into the election year. More quickly and decisively, he could be rebuffed in a matter of weeks by Congress, but only if the legislative branch acts with a resoundingly bipartisan voice.

And this is a bit less of a longshot than it may appear. A critical mass of congressional Republicans is theoretically prepared to conclude it's in their best interest to fight for either their legislative authority or their views of conservative governance, even if that means deviating from their habits of deference and political loyalty to the president.


The climax of this battle looks clear: It will come whenever the House and Senate vote on whether to override Trump's first veto.

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The 1976 law the president invoked last week – establishing the presidential power to address national emergencies with money appropriated for other purposes – says such an emergency declaration can be nullified with a "disapproval resolution" passed by Congress. Exactly when that bill will start moving, and its precise terms, is being deliberated by the Democratic leadership while Congress is in recess this Presidents' Day week. But it's a sure bet the measure will easily move through the House, because all 235 members of the Democratic majority will vote yes, at a minimum. And Senate Majority Leader Mitch McConnell has signaled that at least four of his fellow Republicans are going to join all 47 Democrats to clear the measure in his chamber.

The drama comes after Trump then uses his veto pen to send the legislation back to the Capitol, at which point negating the emergency declaration would require two-thirds support in both the Senate and the House.

That's not altogether out of the question. Twenty GOP senators, the minimum needed to approve guarantee an override, are already on record opposing Trump's declaration – arguing that it either inappropriately tramples on the congressional power of the purse, or sets a dangerous precedent that a liberal future president could use to advance policies on climate change, gun rights or health care without a Capitol Hill stamp of approval. (Their comments have been collected by The Bulwark, a conservative web site highly critical of Trump, and some of the senators spoke before the emergency declaration was a sure thing.)

Only seven GOP House members have made similar public comments to date. But the magic number of 55 would be in reach if they were joined by almost all 23 Republicans on the Appropriations Committee (which now faces having dozens of its spending decisions of the past year nullified) and all 26 Republicans on the Armed Services Committee (angry that Trump wants to take $3.6 million in military construction funding to finance his border construction). Speaker Nancy Pelosi is also circulating a list of projects, many in GOP-held districts, that might be mothballed under Trump's plan.

We’re all about the issues that have broken American democracy — and efforts to make governments work again for you, your family and your friends.
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