WASHINGTON, DC - FEBRUARY 15: U.S. President Donald Trump speaks on border security during a Rose Garden event at the White House February 15, 2019 in Washington, DC. President Trump is expected to declare a national emergency to free up federal funding to build a wall along the southern border. (Photo by Chip Somodevilla/Getty Images)
Donald Trump declared a national emergency after Congress failed to give him all the funding he sought for a wall along the Mexican border © Getty

Donald Trump faces the prospect of a Senate vote seeking to block his declaration of a national emergency to fund a border wall after the Republican leader of the upper chamber conceded there were enough senators opposing the measure.

Mitch McConnell, the Senate majority leader, made his remarks on Monday after a fourth Republican senator, Rand Paul of Kentucky, came out against the president’s controversial action.

That appeared to give Democrats the narrow majority they need to pass the resolution in the Republican-led Senate. The House of Representatives, which is majority Democrat, already voted for the resolution seeking to block the national emergency last week.

Mr McConnell had agreed to support the president’s declaration, despite arguing that it could set a precedent that future Democratic presidents could exploit. “That’s one reason I argued, obviously without success to the president, that he not take this route,” he said.

The Senate has yet to hold its vote on the matter, but a decision by both chambers to disapprove of Mr Trump’s tactics would represent a major reproach and could yet feature in courtroom filings.

Even if the resolution passes it would likely be vetoed by Mr Trump, however. Absent major additional defections from Republican ranks it is unlikely Congress would have the votes to override that veto, which would mean the national emergency stands. 

The president last month declared a national emergency as he agreed to sign a spending bill that failed to appropriate the full funding he has been seeking for a wall along the Mexican border. Going around Congress allowed him to access $8bn to help secure the border and earned him reprimands from both Democrats and Republicans worried he is stretching the boundaries of executive power.

Timeline of US national emergencies

Mr Paul has joined three other Senate Republicans — Thom Tillis of North Carolina, Susan Collins of Maine, and Lisa Murkowski of Alaska — in supporting the resolution. In a Fox News editorial confirming his decision, Mr Paul himself said that Mr Trump’s order for more border wall money “contradicts the will of Congress and will, in all likelihood, be struck down by the Supreme Court”. 

The senator stressed that he was not defying the president because of a disagreement over the policy of building a wall. Instead, Mr Paul said he believed Mr Trump was “seeking to expand the powers of the presidency beyond their constitutional limits”. He said that Congress, which is constitutionally endowed with the power of the purse, had refused to authorise the sums Mr Trump wants to spend on the barrier and the president ought to adhere to that decision. 

Other Republicans have also spoken out against Mr Trump’s move, but clashing with him over the national emergency declaration is risky given the president’s ability to turn his political base against politicians who defy him.

If the president overrides Congress’s attempt to block the national emergency, the battle will continue to play out in the courts. Jonathan Turley, a professor at George Washington University Law School, questioned Mr Paul’s assertion that the Supreme Court would overrule the president. 

The statute allowing Mr Trump to declare a national emergency does not define what constitutes such an emergency, which leaves the president great discretion, Mr Turley said. While many scholars dispute the president’s assertion that there is an emergency on the southern US border with Mexico, the court would probably look at the wording of the statute, he said.

“The National Emergencies Act has a conspicuous omission: it does not define what an emergency is,” said Mr Turley. “Regardless of the vote [in Congress] the president is in a good position ultimately to prevail.”

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