Even if vetoed, a House-Senate measure could stall Trump's wall

First, President Donald Trump declared an "emergency" at the southern border to justify diverting billions of federal dollars to what in 2016 he called his "big, beautiful wall."

Now a majority of the Senate appears ready to support a resolution against this move that the House already voted 245-182 to approve.

Yes, Trump is expected to veto the measure.

And yes, the House and Senate are extremely unlikely to muster the two-thirds vote needed to override.

But that scenario alone will not settle the issue in the president's favor.

Lawsuits are pending challenging Trump's emergency order, and even a blocked congressional resolution could bolster the legal argument against him.

That's because the measure would mark an official, forceful bipartisan statement from both legislative houses.

Judges from Supreme Court Chief Justice John Roberts on down may well give such a statement more weight than if they just saw the lawmakers continue to decline funding the wall.

Under the Constitution, Congress writes budgets into the law. Treasury funds cannot be tapped unless by law.

"In the framework of our Constitution, the president's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker," Supreme Court Justice Hugo Black wrote in a key 1952 case.

This involved President Harry Truman's "emergency" declaration nationalizing steel production, purportedly so a strike in the mills would not stymie the Korean War effort.

"The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad," Black wrote.

Trump, however, is invoking the 1976 National Emergencies Act. Legal experts say this might work especially if the courts buy into the concept that the "emergency" he rails about is real.

Still, Sen. Rand Paul (R-Ky.) cites Article 1 of the Constitution in announcing support for the resolution. Paul's support was expected Monday to give the measure just enough votes to win approval in the Republican-controlled Senate.

"I can't vote to give the president the power to spend money that hasn't been appropriated by Congress," Paul explained.

"We may want more money for border security, but Congress didn't authorize it. If we take away those checks and balances, it's a dangerous thing."

Notice how Senate Majority Leader Mitch McConnell, who never made the wall a priority, isn't fussing and fuming over the resolution on Trump's behalf. He plans to hold a floor vote soon.

McConnell, in fact, had expressed hope early on that Trump wouldn't resort to an "emergency" proclamation.

"I think what is clear in the Senate is that there will be enough votes to pass the resolution of disapproval," McConnell (R-Ky.) told reporters Monday in his home state.

Peter M. Shane, a law professor at Ohio State University, posted on the Salon website Monday: "The joint resolution underscores the big-picture constitutional dimension of the fight.

"Congress’ power of the purse is its heavy artillery in the scheme of checks and balances," he stated.

"A majority vote for the joint resolution could help put the judiciary in a skeptical mood" over Trump's assertion of power, Shane wrote.

By Dan Janison

dan.janison@newsday.comDanJanison

Dan Janison is a member of the Newsday editorial board.