By Steven T. Dennis and Erik Wasson / Bloomberg
Senate Majority Leader Mitch McConnell and other Republicans had been signaling for weeks that they hoped to avoid an emergency declaration by President Donald Trump to build a border wall. The move risked dividing the GOP, messy floor votes and a certain court challenge from Democrats.
When the time for a decision came Thursday, McConnell lined up behind Trump.
“I indicated to him I’m going to support the national emergency declaration,” McConnell, of Kentucky, said on the Senate floor.
On Jan. 29, the majority leader had told reporters, “I’m for whatever works, which means avoiding a shutdown and avoiding the president feeling he should declare a national emergency.”
The president plans to unilaterally shift nearly $7 billion in federal funds to construct physical barriers along the U.S.-Mexico border, according to a person familiar with his intentions. That’s on top of the $1.375 billion for fencing contained in spending legislation passed Thursday by Congress, which Trump said he will sign.
McConnell’s decision to support Trump’s declaration surprised many of his colleagues, and some Republicans said they’re worried Congress would be turning over its power to the president.
It’s “a bad idea,” Sen. Marco Rubio, R-Fla., said. “It raises real constitutional questions.”
But others backed Trump and McConnell. “I stand firmly behind President Trump’s decision to use executive powers to build the wall-barriers we desperately need,” said Sen. Lindsey Graham, R-S.C., a Trump ally.
Declaring a national emergency would allow Trump to shift billions allocated to other projects to the wall. In addition to lawsuits, that will trigger votes in the House and Senate on whether to disapprove the emergency declaration. Some Republicans, including Rubio, said they may support a legislative move to block Trump from using those funds.
If a majority in both chambers votes to disapprove, Trump could veto the disapproval resolution. The chances of a veto override, requiring two-thirds of each chamber, are remote, particularly with McConnell backing the president.
Many Republicans, including Sens. Roy Blunt of Missouri and Mitt Romney of Utah, said they would wait and see what Trump does before deciding how to proceed.
Sen. Pat Toomey, R-Pa., said he’s against a national emergency but wouldn’t commit to voting to disapprove of one. “My view is this is better resolved through the legislative process,” he said.
The White House didn’t provide details Thursday of which pots of money the president plans to divert to a border wall, but the administration has discussed at least four possible areas to tap: a Defense Department anti-drug-smuggling program, military construction funds, Army Corps of Engineers disaster money and criminal asset forfeiture funds.
Sen. Shelley Moore Capito, R-W.Va., said Trump may be justified because Congress isn’t providing enough money to ensure security at the U.S.-Mexico border. “The issues at the border are important enough to move in that direction,” said Capito, adding that she’s concerned about the precedent the declaration would set, and that she will review the president’s order.
Sen. Susan Collins, R-Maine, opposed an emergency order because “it undermines the role of Congress and the appropriations process.”
Sen. Rand Paul, R-Ky., also told reporters he doesn’t support an emergency declaration.
“The Constitution is very clear at trying to separate the powers, and if we start naming things as emergency I think very quickly we lose sort of the checks and balances of government,” he said.
House Majority Leader Nancy Pelosi, D-Calif., told reporters that a legal challenge is an option. “The president is doing an end run around Congress, the power of the purse,” she said at a news conference.
House Judiciary Chairman Jerry Nadler, D-N.Y., said in a statement he’ll support a resolution against an emergency declaration will “pursue all other available legal options.”
Trump also faced resistance to tapping Defense Department money from members of the GOP including the House Armed Service Committee’s top Republican, Mac Thornberry of Texas. “It would undercut one of the most significant accomplishments of the last two years — beginning to repair and rebuild our military,” he said.
Some legal specialists warned that an emergency declaration sets a bad precedent for future presidents.
“If Trump can get away with declaring a national emergency and then spending money on this construction project, which is only vaguely related to national security, why wouldn’t future presidents do the same thing?” asked Ilya Somin, a law professor at George Mason University and an expert in constitutional law and property law. “What’s to stop a President Elizabeth Warren or any other Democratic president from saying climate change is a threat to national security?”
Charles Tiefer, a professor of law at the University of Baltimore, said the Democratic-controlled House would have standing to try to sue the White House for its attempts to move money to fund the wall. Tiefer said a declaration could prompt lawmakers to add language to future spending bills forbidding transfers under national emergencies.
“What you would see is bill after bill coming out of Congress specifying that funds in those bills cannot be used for a wall,” he predicted.
With assistance from Bloomberg’s Ari Natter, Anna Edgerton, Sahil Kapur, Arit John and Laura Litvan.
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