Republican support for an emergency declaration to build President Donald Trump’s border wall is growing in Congress, as GOP leaders and White House officials view it as a way out of a shutdown fight they’re losing.
With a partial government shutdown now in its 18th day, and Trump weighing the extraordinary move ahead of an Oval Office address Tuesday night, some of the president’s advisers argue an emergency declaration of a border crisis — to free up billions of dollars for Trump’s border wall — would allow Republicans to reopen the federal government without looking like they’ve caved to Democrats.
Trump allies believe it would send an unmistakable message to the president’s base that he’s dead serious about border security. But it would also allow Trump and Republicans to save face, they note privately. GOP leaders on Capitol Hill know support for the shutdown is slowly eroding inside the party, as more moderate Republicans call for an end to the crisis. And so they’re advising Trump to make the case for executive action over the next few days should he decide to deploy it.
“I’m sure he’d rather do it through a meeting, a productive one, between him and [Senate Majority Leader Chuck] Schumer and [Speaker Nancy] Pelosi. I think they both feel that’s maybe not materializing soon,” said Sen. Mike Braun (R-Ind.) in an interview. “If he sees no agreement coming, I think he’ll push the envelope.”
Sources inside the West Wing cautioned, however, that a final decision has yet to be made. Indeed, there is internal disagreement about whether declaring a national emergency is even a good idea — and, if Trump chooses to do so, about the appropriate timing and venue for such a declaration.
Several of the president’s outside advisers, including his former campaign chairman Stephen Bannon and former deputy campaign manager David Bossie, are urging him to take the more extreme course.
Others, however, are urging caution, telling the president that a legal challenge to his actions would be almost assured, putting Trump on course for a bare-knuckled fight with House Democrats and a grueling series of court challenges.
The president and his aides are debating whether it is worth it, given the wall’s symbolic meaning to Trump voters who repeatedly invoked it in campaign chants in 2016. And since they’re still debating the issue, the president is unlikely to declare a national emergency in his Oval Office address Tuesday evening, according to two sources with direct knowledge of the discussion.
Stephen Miller, the outspoken immigration hawk and senior Trump adviser, is taking a leading role writing Trump’s remarks.
Democrats have already suggested declaring a national emergency to build the wall would be unconstitutional, arguing that Trump has no proof that an emergency actually exists and no authority to move around already-appropriated federal funds without congressional approval. Pelosi and Schumer will follow Trump’s address with their own rebuttal and will be sure to hit that point.
Trump, meanwhile, was scheduled to meet with cable and network anchors on Tuesday for an off-the-record lunch to preview the speech, according to a White House official. And other White House officials have taken to cable networks to frame the wall as an antidote to a “crisis” situation at the border.
Vice President Mike Pence, who will huddle with Hill Republicans Tuesday night to discuss the shutdown and the possibility of Trump taking unilateral action, told NBC’s “Today” that Trump had not made a decision yet on how to proceed. Trump, however, will “explain to the American people that we have a humanitarian and security crisis at our southern border,” he said.
“It is a real crisis,” Pence said. “Tonight he will tell the American people why Congress should act.”
Pence and Homeland Secretary Secretary Kirstjen Nielsen will brief House Republicans Tuesday night. Multiple GOP leadership aides said they expected the GOP conference to be open to the idea.
“I think that if Pence and Nielsen come in and do a hypothetical walk-through to members about how the process would work, and we could re-open the government by the end of the week, even tonight, so that paychecks weren’t affected, I think members would take that,” said a GOP leadership aide. “This emergency declaration could be an out for everybody.”
Senate Majority Leader Mitch McConnell has yet to weigh in. Asked if Trump could or should declare a national emergency, the Kentucky Republican said he’d give a speech on Tuesday afternoon and otherwise declined to comment. Pence and Nielsen will meet with GOP senators on Wednesday.
Congress alone has the power of the purse under the Constitution. But presidents are able to use unobligated military funds during a national emergency. Whether such a crisis exists, of course, is hotly contested, with Democrats noting that there are actually fewer border apprehensions this year than in past decades.
By backing what would be an explosive move, GOP leaders could open themselves up to accusations of hypocrisy. For years, they complained about what they viewed as executive overreach on immigration policy by former President Barack Obama. By supporting an emergency declaration by Trump without proof of an emergency — all to fulfill a campaign promise — Republicans would be greenlighting Trump’s moves to usurp congressional authority.
Trump would almost certainly face an immediate challenge in the courts, with a messy legal battle that could drag out for months if not years.
House Majority Leader Steny Hoyer (D-Md.) ripped Trump during a discussion with reporters Tuesday morning, calling him a “dictator” who is treating the U.S. like an autocratic country where rulers declare “martial law” to impose their will on the people when they can’t get their way.
“A problem exists but not a crisis that would justify him acting unilaterally,” Hoyer said. ““There is no crisis, there is no invasion, there is no clear and present danger.“
Republicans and White House officials who support the idea don’t care. Let the courts deal with it, they say. And Trump wouldn’t be accused of caving, they argue.
“I can see the benefit of why he would pursue that approach if Democrats refuse to even negotiate. They don’t want to talk period and that’s not an approach that is sustainable,” said a senior congressional Republican aide.
On Tuesday morning, Indiana Republican Rep. Susan Brooks said she would back Trump’s decision to declare a national emergency. The moderate-minded lawmaker cited the swelling number of child migrants who have crossed the border.
“I do think that this is a much greater crisis that we’ve seen in the past at the border. So if the president deems that a national emergency, then yes, I would support that,” she said in an interview with radio host Gordon Deal.
Not all GOP lawmakers are sold, however. Some senior Hill Republicans worry announcing the emergency declaration followed by passage of Democratic spending bills would be viewed as a defeat within the party. Some believe Trump can win a shutdown fight against Democrats if he continues to hold out for $5 billion for the wall. Other Republicans said it could be difficult to endorse a process that circumvents Congress.
“I don’t like the sound of that,” Rep. Jim Banks (R-Ind.), a veteran of the war in Afghanistan, told a radio station Tuesday, later adding: “At the end of the day… all of this falls in the lap of Congress.”
Burgess Everett, John Bresnahan and Sarah Ferris contributed to this report.
Article originally published on POLITICO Magazine
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