Congress’s latest attempt to block President Donald Trump’s national emergency is officially dead.
Trump this past February had declared a national emergency in order to repurpose billions of dollars in funding for a wall along the southern border, a move lawmakers sought to stop via a resolution terminating the emergency. While both chambers of Congress passed the resolution, with the support of roughly a dozen Republicans in each, Trump refused to sign the measure and ultimately vetoed it.
The House on Tuesday tried to override this veto and failed to do so, rendering the congressional efforts to end the emergency completely moot. In order to override the veto, House Democrats would have needed two-thirds of the chamber’s support, or 290 votes; they gained 14 Republicans to make the final tally a grand total of 248 votes in favor versus 181 against.
Because the House did not approve the veto override of the resolution, the Senate is not expected to take it up for consideration. (Since the override failed in the House — the chamber where the measure originated — the other chamber does not have the impetus to review it.)
The veto override vote was never necessarily about getting enough people to get the measure through, though, according to House Speaker Nancy Pelosi, it was about sending a message. “Whether we can succeed with the number of votes is not the point,” she’s said. “We are establishing the intent of Congress.”
The opposition toward the national emergency will now shift squarely to the courts, a fight that congressional Democrats could potentially join as well.
Already, organizations including the American Civil Liberties Union and 20 states are pursuing lawsuits challenging Trump’s declaration. As Pelosi and Senate Minority Leader Chuck Schumer have previously stated, they could be interested in bolstering such efforts.
“The Congress will defend our constitutional authorities in the Congress, in the Courts, and in the public, using every remedy available,” they said in a February statement. As of now, Trump is able to move $3.6 billion dedicated to military construction projects in order to fund a wall along the southern border, according to the Associated Press.
The Trump administration will have to defend its decision to circumvent Congress’s power of the purse
Trump’s February emergency declaration is set to face a whole lot of scrutiny in the courts — and Congress’s vote to terminate the emergency earlier this month could wind up holding some weight in these lawsuits.
One of the arguments multiple suits are making is that Trump is attempting to obtain funds via the national emergency that Congress has already declined to give him, making his actions unconstitutional. Since the Constitution gives Congress the power to authorize federal spending, Trump’s efforts could be seen as going around the legislative branch.
The congressional vote against the resolution could be used in court to demonstrate just how much opposition there is from the legislative branch to Trump’s actions, legal experts told Vox. It could also be used to back up another argument several lawsuits are making: that there isn’t actually any emergency.
The National Emergencies Act of 1976 gives presidents a wide berth when it comes to determining what an emergency is, which could provide Trump’s declaration the cover it needs to prevail in court. But it’s possible a judge could determine that the emergency Trump is claiming is anything but, since Congress has now actively sought to terminate it.
“When this issue gets to the courts, Congress’s view that no emergency exists might well affect how aggressively the courts review the president’s arguments to the contrary,” said Richard Pildes, a constitutional law professor at NYU.
Whether it actually does will be a fight that’s drawn out in the coming months — possibly even years.