Trump signs national emergency to build border wall, setting up massive legal fight

Sarah Huckabee Sanders | The White House

President Donald Trump emerged from one political crisis Friday and immediately dove into another.

The president was slated to sign a government spending and border security plan into law with only hours to spare before parts of the government shut down Saturday. He also declared a national emergency to repurpose funds from other parts of the government to build his proposed border wall without congressional approval.

“I’m going to be signing a national emergency, and it’s been signed many times before, by many presidents. It’s rarely been a problem … nobody cared,” the president said during unscripted remarks Friday in the White House Rose Garden. White House press secretary Sarah Huckabee Sanders then shared an image that she said showed Trump signing the declaration.

Source: Sarah Huckabee Sanders | The White House.President Donald Trump signs the Declaration for a National Emergency to address the national security and humanitarian crisis at the Southern Border.

The president faces significant opposition to his action. The emergency declaration, which was criticized by Democrats and Republicans alike when Trump first threatened it, is likely to bring swift legal and legislative challenges. Already, it has sparked a fierce debate over executive authority, as critics argue Trump has manufactured a crisis to fulfill a campaign promise that was thwarted by Congress.

Trump had pushed for lawmakers to approve $5.7 billion to build his proposed border wall. Instead, the divided Congress passed only $1.375 billion to construct new bollard fencing on 55 miles of the U.S.-Mexico border. By declaring a national emergency, and taking other executive action, the White House hopes to create a pool of $8 billion to use for barriers.

Trump’s comments in recent weeks as he threatened an emergency declaration could hurt his legal case. He repeatedly framed it as a choice, rather than a necessity. On Friday, he claimed, “I could do the wall over a longer period of time. I didn’t need to do this [national emergency]. But I would rather do it much faster.”

Dealt another political blow by Congress, the president has repeatedly argued he has the authority to reallocate money without the approval of the legislative branch. The emergency declaration, the administration claims, would permit the president to divert funds from other agencies, primarily the Department of Defense, to be used for the border project.

Already, some Democrats have threatened legislation to block it. In a joint written statement, House Speaker Nancy Pelosi, D-Calif., and Senate Minority Leader Chuck Schumer, D-N.Y., said they “will defend our constitutional authorities in the Congress, in the Courts and in the public, using every remedy available.”

“The President’s emergency declaration, if unchecked, would fundamentally alter the balance of powers, inconsistent with our Founders’ vision. … The President is not above the law. The Congress cannot let the President shred the Constitution,” they said.

Several Republicans hesitated to line up behind Trump even as the party’s leaders backed up the declaration.

In his remarks Friday, Trump justified his move by claiming the U.S. faces an “invasion” — though border crossings are at the lowest levels seen in decades. He argued the U.S. needs barriers to hold off traffickers of people and drugs, even as he commended his administration for stopping so-called caravans of migrants.

Trump braced for a coming legal battle. “I expect to be sued” after declaring an emergency, he said. Trump added that challenges could go to the Supreme Court, where he hopes to get a “fair shake.”

“I think we will be very successful in court,” the president argued, in response to concerns about his authority to declare a national emergency.

President Donald Trump speaks during an event in the Rose Garden at the White House to declare a national emergency in order to build a wall along the southern border, Friday, Feb. 15, 2019, in Washington.

President Donald Trump speaks during an event in the Rose Garden at the White House to declare a national emergency in order to build a wall along the southern border, Friday, Feb. 15, 2019, in Washington. |
Evan Vucci | AP

Speaking to reporters Friday morning, Acting White House Chief of Staff Mick Mulvaney said the president intends to create an $8 billion pot of money for wall construction. Congress set aside $1.375 billion of that in the Department of Homeland Security funding bill. Another $600 million would come from Treasury Department drug forfeiture funds. The Department of Defense would provide the rest, in the form of $2.5 billion from the military’s fund for counter narcotic activities, and $3.6 billion reprogrammed from the military construction budget.

“What’s not on that list is taking away disaster relief money from places like Texas and Puerto Rico,” Mulvaney said, who sought to put to rest earlier speculation that the administration might use funds set aside for disasters to build the wall.

Mulvaney also insisted that the president’s use of national emergency powers, codified in a 1976 bill passed by Congress, did not create a precedent future presidents could use to pay for their own policy priorities without congressional appropriations.

It was not entirely clear why this action wouldn’t set a precedent for the future, however. At one point, Mulvaney seemed to suggest that it was because this action was legal, and those of a Democratic president wold not be.

The current legislation contains strict geographic restrictions on where new portions of wall can be built, but a senior administration official said these only apply to the $1.375 billion from Congress.

The official also explained that only one of the four funding sources, the military construction funds, specifically required the declaration of a national emergency, while the rest did not. The official said presidents had activated these emergency restricted funds twice before: Once in 1990, to fund Operation Desert Storm to liberate Kuwait following Iraqi invasion, and the second time in November of 2001, to fund the American military campaign in Afghanistan in response to the 9/11 attacks.

The White House is currently going through a filtering process to ensure that any funds taken from the military would not affect operational readiness or active duty troops, the official said. The accounts tapped to build the wall this year would be refilled with funds in the 2020 fiscal year budget, which the administration aims to finalize this spring, the person added.

The administration’s ultimate goal is to build 234 miles of wall, but the official acknowledged that the precise outcome and processes will be “a little bit of a mix and match, because different pots [of funding] have different restrictions on how they can be used.”

The official also emphasized that any new portions of wall would be made of steel bollard, saying that both Democrats and Republicans had agreed to this type of barrier months ago. “There’s no fight over what’s going to be built, it’s going to be a bollard wall,” the official said.

Trump’s wall demand led to a record 35-day partial government shutdown during December and January. This time around, he chose to keep the government open, but risked an even bigger gambit.

Backlash from Democrats came down quickly when Trump announced his intent to declare a national emergency on Thursday.

“Declaring a national emergency would be a lawless act, a gross abuse of the power of the presidency and a desperate attempt to distract from the fact that President Trump broke his core promise to have Mexico pay for his wall,” Pelosi and Schumer said in a statement Thursday. They added: “This is not an emergency, and the president’s fearmongering doesn’t make it one.”

Another senator with a key role in overseeing Defense appropriations said he would fight Trump’s move to pull from the military construction budget. In a tweet Thursday night, Sen. Brian Schatz, D-Hawaii, called it “an abdication of our obligation to responsibly fund the military” and said he “will fight this in every way that [he] can.”

“Whether it’s dry docks or clinics or hangers (sic) or runways, there is not 3.5B to remove without dire consequences,” Schatz, the ranking member on the Senate Appropriations Committee’s Military Construction and Veterans Affairs Subcommittee, wrote in a follow-up tweet Friday morning.

The top Republicans in Congress offered their support for an emergency declaration. On Thursday, Senate Majority Leader Mitch McConnell, R-Ky., and House Minority Leader Kevin McCarthy, R-Calif., both said they backed the president’s move.

Not all Republicans were comfortable with it. GOP senators including Chuck Grassley of Iowa, Marco Rubio of Florida and John Cornyn of Texas have argued a declaration would set a bad precedent as Trump threatened to take the step in recent weeks.

In a statement Thursday, Rubio said “no crisis justifies violating the Constitution,” adding that he is “skeptical” whether he can back the declaration. Sen. Rand Paul, R-Ky., also tweeted that “extraconstitutional executive actions are wrong, no matter which party does them.”

Congressional Democrats are gearing up to fight the emergency declaration. Several representatives committed to backing a resolution of disapproval, which Congress can pass within 15 days of the declaration.

If the Democratic-held House approves the measure, it would pressure Republicans in the GOP-held Senate. Trump could veto the plan if lawmakers could not muster enough votes to overcome his opposition.

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