Sen. Mike Lee arguably worked harder than the White House to forestall Thursday’s embarrassing defeat on emergency powers.
The Utah Republican pored over federal budget documents, talked with White House lawyers and Senate colleagues, worked over the weekend to draft a compromise bill and personally lobbied the president and the vice president to no avail.
But in the end, he joined with 11 other Republicans to reject Trump’s declaration of an emergency to build a wall on the southern border in a 59-41 vote, forcing President Donald Trump to issue his first veto.
“That’s not governing. That’s ruling,” Lee said Thursday as he cast what he said he was a reluctant vote against the President. “The Constitution is all process. That’s the whole point.”
Lee, a former federal prosecutor who made Trump’s short list of potential Supreme Court nominees, has long been skeptical of expansive federal powers, publishing books with titles like “Our Lost Constitution,” so it was natural that he would take the lead on the fight.
But the group of senators who joined him weren’t all so-called constitutional conservatives. The dozen Republicans who voted to overturn the emergency resolution included occasional Trump skeptics like fellow Utah Sen. Mitt Romney, moderates facing tough re-elections in 2020 like Maine Sen. Susan Collins and appropriators jealously guarding Congress’ power of the purse like Tennessee Sen. Lamar Alexander.
Meantime, two Republicans who are often simpatico with Lee — Sens. Ted Cruz of Texas and Ben Sasse of Nebraska — sided with Trump.
Lee had worked for weeks to head off the fight, doing everything he could think of to alert the White House that a clash was inevitable if Trump continued to pursue a border wall with Mexico by subverting congressional powers. After all, the framers of the Constitution explicitly gave Congress the power to set budgets in order to constrain executive power, and this Congress had declined to give Trump the money for his wall.
In meetings with White House officials and Vice President Mike Pence, Lee warned that this was not a one-man crusade, arguing that other senators would be forced to support the resolution out of concerns for how a future Democratic president might use the precedent on, say, a Green New Deal or gun regulation.
Lee had held out hope even until Wednesday for his compromise plan that would allow Trump to use the National Emergencies Act one last time to fund a border wall in exchange for agreeing to sign off on a revision of the 1976 law that would reduce its powers.
Privately, Lee and others had tried to reason with the President even before he invoked an emergency. Knowing the President had in his mind an almost $6 billion target, Lee and his staff looked through federal budget documents and found the money elsewhere. He called over to the White House counsel’s office and walked lawyers through the budget documents and urged them to avoid triggering what Lee saw as an unnecessary use of the emergency powers.
Congress had repeatedly refused to fund any request for the wall along the U.S.-Mexican border. Trump refused to sign a spending bill late last year that lacked money for his wall, plunging the government into its longest shutdown in history. After 35 days, Trump relented and re-opened the government on Jan. 25 without funding for his border wall, which was central to his campaign rhetoric.
Trump, deeply frustrated and still smarting from his defeat, appeared in the Rose Garden on Feb. 15 and declared a national emergency. The move unlocked vast powers for the President and triggered a potential constitutional crisis over executive power.
Lee, nonplussed, spent that weekend on the starting point to reverse some of those emergency powers. He briefed colleagues on a one-page version of a revised emergency powers measure a few days later, specifically any emergency lasting more than 30 days required Congress’ sign-off. He introduced a formal bill on Tuesday of this week.
Hours later, a group of concerned lawmakers met privately with Pence at the Capitol, arguing that it was likely the Senate would deliver Trump a blow and reject his invocation of the emergency. They also briefed Pence about Lee’s bill to limit future uses of such powers, according to a Senate aide briefed on the meeting.
The Vice President listened politely and said he would convey their advice to the President but betrayed little of his own views.
The President did not heed the message. As Lee was having lunch with colleagues a day later, his iPhone rang. Lee stepped out of the room to take the call. The President had called to tell him that his bill was a non-starter. When he got back to his office, Lee told reporters that he was unable to back the President’s use of emergency powers.
And, in turn, White House officials said yet again that Trump would veto Congress’ effort to curb his powers.
Conservative senators, who otherwise were generally in favor of Trump’s pleas for border security, quietly called each other, according to lawmakers and aides. They were fine with these steel slats and fencing, but a unilateral power grab coming from the other end of Pennsylvania Avenue was a step too far. They had hoped Trump would be drawn in another direction or forget about the declaration. He had not.
So worried were some Trump allies, a trio crashed Trump’s dinner in the White House residence Wednesday night with a warning. Sen. Lindsey Graham, Sen. Ben Sasse and Sen. Ted Cruz interrupted the President’s dinner with First Lady Melania Trump to tell him he was hemorrhaging support inside the GOP caucus, according to a Senate aide and first reported by the Washington Post. Trump listened politely but reminded his visitors that they didn’t have the 67 votes to override his promised veto.
It was the end of a remarkable backroom effort that far outstripped Trump’s own lobbying on the issue. Speaking to reporters in the White House on Wednesday, Trump seemed resigned to losing the Senate vote and said he was not pressuring any Republicans over it.
“Yeah, nobody — nobody is beaten up. I said, ‘Use your own discretion,'” he said. “But I think it’s a bad vote if they go against — I think anybody going against border security, drug trafficking, human trafficking, that’s a bad vote.”
As they announced their opposition on Thursday, Republican senators disagreed with Trump’s take on the issue.
“I do believe we have a crisis at the border,” said Sen. Rob Portman, an Ohio Republican. But as a former White House budget chief, Portman also knew the Pandora’s box being opened. What Trump was doing, Portman said Thursday, “sets a dangerous new precedent” to have “unlimited power.”
“Our Constitution explicitly gives Congress the power of the purse. Congress, not the President, has the sole power to spend money,” Portman said.
By the time the final vote came, almost one-in-four Republican Senators joined unified Democrats in rejecting the President’s use of extraordinary powers.
Whether those lawmakers will face any consequences for their votes remains to be determined. In phone calls with lawmakers, Trump has promised retribution for those who defy him. That may be what compelled Sen. Thom Tillis, who faces re-election next year in politically divided North Carolina, to change his vote at the last minute and support the President’s position.
“We know that he has been vindictive, contemptuous,” Democratic Leader Chuck Schumer said on the Senate floor, saying he tipped his hat to GOP colleagues who defied the White House.
Whether Trump ultimately decides to seek revenge is of worry for Republicans, who are looking at a 2020 map that, at this point, suggests their majority is vulnerable. One Republican aide noted dryly that Trump might blink, if only because a Democratic Senate only doubles the investigations he faces. Ultimately with Trump, his self-interest can force him to back down.