With talks to end the partial government shutdown showing no signs of progress, President Trump on Thursday said he has “an absolute right to declare a national emergency” in order to build a wall along the southern border without authorization from Congress.
"I may do it. If this doesn't work out, probably I will do it. I would almost say definitely," Trump said, adding that he hasn’t done it yet because he would like to reach a deal through Congress.
Late in the day, Sen. Lindsay Graham (R-SC) reportedly called for Trump to use emergency powers to fund the wall, after the president rejected a Graham-led effort by Senate Republicans to break the shutdown stalemate.
A Constitutional Battle as the Only Way Out?
Democrats have denounced the idea of a national emergency declaration and are sure to quickly challenge any such move in court. Some Republicans have warned against it, as well, concerned that it would set a problematic precedent regarding presidential power. “But it could be the only politically realistic way out of the shutdown crisis in the nation’s capital,” writes Charlie Savage in The New York Times.
Invoking emergency powers would unleash a firestorm of criticism and legitimate concerns about the health of the democratic process and rule of law in the U.S. “Of the 58 times presidents have declared emergencies since Congress reformed emergency-powers laws in 1976, none involved funding a policy goal after failing to win congressional approval,” Savage notes.
The Politics at Play
Those high-minded constitutional considerations might take a back seat to shorter-term political calculations, at least in the president’s mind. As we wrote here earlier this week, a declaration would allow the government to reopen without either side backing down in the fight over the border wall — and likely without resulting in much immediate progress on wall construction, given the legal battles that are sure to arise.
“If, in the end, the Supreme Court were to rule that emergency-power laws give Mr. Trump authority to proceed, he would probably face still more litigation with property owners over whether the government may use eminent domain to force them to sell their border lands,” Savage says. “There may be little time left in his term after all that to add more than a few miles, if any, of barriers to the 1,954-mile border.”
If, on the other hand, Trump’s declaration is ruled illegal by the courts, Trump “could honestly tell his supporters that he tried, and then vow to renew the push if he is re-elected.”
How Trump Could Get His Wall Money from the Pentagon
White House lawyers are reportedly preparing a legal justification for an emergency declaration. And officials at the Department of Defense are already searching for funds that could be redirected to wall construction, CNN’s Barbara Starr reports:
“Defense Department officials told CNN that the Pentagon is planning a figure of about $2.5 billion in funds they believe they can tap to support construction of a border wall if Trump declares an emergency and orders the military to build a wall. Those funds fall under the ‘unobligated’ pool of funds, which means the funds are earmarked but have no signed contracts signed for spending that money. Anything beyond that would require the cancellation of existing military construction projects, which might come with costly termination fees.”