President Donald Trump’s conservative allies are urging him to declare a national emergency to build his proposed border wall, though he isn’t expected to do so in his address to the nation Tuesday evening.
The emerging strategy is now seen by some of his allies as the president’s best way to get his wall on the U.S.-Mexico border -- a key campaign promise. The move could also offer a path out of a political crisis created after he shut down much of the government because Congress refused to spend more than $5 billion to build the wall.
It’s unlikely that Trump will use an Oval Office address scheduled for 9 p.m. Washington time to invoke emergency powers. A draft Tuesday morning didn’t include such a declaration, though Trump could change his mind and add it at any time, said two people familiar with the matter. Trump’s advisers continued to jockey over the strategy ahead of the speech.
House Speaker Nancy Pelosi and Senate Democratic leader Chuck Schumer are scheduled to deliver a televised response following Trump’s speech as the government shutdown, already the second longest on record, stretches into its 18th day.
Trump invited from both parties in the House and the Senate to a White House meeting on Wednesday, people familiar with the matter said. Pelosi and Schumer are planning to attend.
Trump’s team was seeking Tuesday morning to include an olive branch to Democratic leaders on the impasse even as the president argues the border is a national security crisis, according to a person familiar with the matter. Jared Kushner, Trump’s senior adviser and son-in-law, was making calls to reach out to Democrats Tuesday, the person said.
But some key Republicans were cautioning against the move.
Representative Mac Thornberry, the top Republican on the House Armed Services Committee, said it would “be damaging” for the president to reallocate military funds to constructing a border wall. “I am opposed to using defense dollars for non-defense issues,” he said.
Senator John Cornyn, a Texas Republican, said the standoff over funding the wall “is an imminently solvable problem.”
“There is a hard way and easy way to do things,” Cornyn said. “That definitely would be the hard way,” he said, referring to a national emergency declaration.
The Trump allies pressing for the emergency-powers strategy believe there is a good chance the Republican-appointed majority on the Supreme Court will line up behind the GOP president and, if not, political blame can be pointed at the justices who rule against Trump, the people said.
Vice President Mike Pence told NBC News on Tuesday morning that Trump in his address “will explain the need not just to build the wall, which he’s determined to do, but also to provide our border patrol with additional resources.” He will also call on Democrats to “come to the table and start negotiating,” Pence said.
The president is eager to invoke emergency authority, a move that would test the limits of presidential power.
Trump has asserted that he has the authority to build a wall without congressional approval if he declares a national emergency, but the White House hasn’t explained the legal justification. Democrats have rejected the idea as an illegal overreach of presidential authority but Republican lawmakers have been relatively quiet.
A key House conservative offered muted public support for the approach despite the precedent it would set expanding presidential power.
'Obviously, a national emergency declaration is an option but it should be the last option used,' said Representative Mark Meadows of North Carolina, who leads the conservative House Freedom Caucus, and regularly talks to Trump.
'It is far better that Democrat and Republican negotiators find common ground between $5.6 billion and zero for new border construction,' said Meadows.
Under the law governing the Pentagon, the president can declare a national emergency, which would allow the defense secretary to redirect money from military construction funds for projects “necessary” to support the deployment of U.S. armed forces. That allows the secretary to skip congressional approval, which is normally needed to spend federal money.
The president has broad authority to declare a national emergency under a 1976 law and dozens of emergencies have since been declared, including during the Iran hostage crisis and the aftermath of the Sept. 11 terror attacks.
“He has the authority to declare an emergency as long as he does so following the protocols laid out in that statute,” said Harold Krent, a professor who studies presidential power at the Chicago-Kent College of law, in a Bloomberg Radio interview. “There are very few constraints in the legislation that define what is a permissible emergency.”
But the law, passed as part of a sweeping set of legislation designed to restrain presidential powers after the Watergate scandal, also demands that the president invoke specific statutory authority for emergency actions.
The Defense Department has emergency power to tap into -– but not to exceed –- funds already appropriated for military construction, as long as those funds aren’t already officially obligated. Trump has sent National Guard units and active-duty military to the border to support immigration enforcement.
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