WASHINGTON ― With President Donald Trump floating the idea of declaring a national emergency to bypass Congress and build his promised border wall, Republican lawmakers are sounding uneasy ― though not necessarily opposed.
After spending years decrying “executive overreach” over President Barack Obama’s moves around Congress, Republicans on Capitol Hill are generally squirming but shrugging over Trump’s threats, which he renewed again Wednesday.
“I think we might work a deal, and if we don’t, I may go that route,” Trump said of declaring a national emergency and building the wall through a re-designation of funds. “I have the absolute right to do national emergency if I want.”
With negotiations over reopening government continuing to fall apart, the national emergency gambit is looking more likely by the day. Trump would declare a crisis on the U.S.-Mexico border, use an obscure authority to take unspent money to start wall construction, and Republicans and Democrats could vote for spending bills without wall funding.
The wall construction would likely then be halted by a court, but Trump and Republicans would have their justification for reopening the government.
Trump’s legal authority to disregard Congress and spend money that Congress has very explicitly not appropriated is dubious at best.
Republicans point to reprogramming authority the president has in cases of a national emergency, in which Trump could spend money designated for military construction projects on other projects he deems more important. Rep. Mac Thornberry (R-Texas), the ranking Republican on the Armed Services Committee, explained how that would work to the GOP conference on Wednesday morning.
The statute aside, the idea of Trump appropriating money to projects Congress has blocked is fundamentally contrary to the Constitution. But if Trump went that route, he’d likely find a lot of Republicans who’d reluctantly go along.
And some GOP lawmakers would cheer him on.
Sen. John Kennedy (R-La.) said Trump had a “legal basis” for declaring a national emergency. “I have read the law. It would not be frivolous if he does it,” Kennedy said.
Texas Rep. Randy Weber said he thought the border was a national emergency and that he “absolutely” supported the president building the wall through that sort of declaration.
“Obviously, we don’t want any executive to overreach,” Weber said. “But if this is indeed truly a national emergency, and he has that power, then he’s well within his power to do that.”
Weber was also unconcerned that Trump’s remedy for this “national emergency” would be a wall that would take years to build.
“Bill Clinton said he wouldn’t drill in ANWR,” Weber said, referring to the Arctic National Wildlife Refuge in Alaska. “He said even if he agreed to it, it would take 10 years for Americans to see any of that oil. When did he get out of office? So you gotta start somewhere.”
“Obviously, we don’t want any executive to overreach. But if this is indeed truly a national emergency, and he has that power, then he’s well within his power to do that.”
Rep. Joe Wilson (R-S.C.) also told HuffPost he supported the president using a national emergency declaration to build the wall ― “I remember the argument against a fence in Jerusalem,” he said ― but even the Republicans who expressed some uneasiness with the president going around Congress to build a wall left themselves plenty of room if Trump did declare a national emergency.
Freedom Caucus Chairman Mark Meadows (R-N.C.) said he looked at that sort of maneuver as a “very last resort” and had encouraged Republicans and the president to keep negotiating, but he also said it was “a tool in his toolbox.”
“I’ve read two different statutes that seem to give him authority in this particular case to do that,” Meadows said. “My concern is, where does it lead from there? I mean, is everything a national emergency? Is climate change a national emergency? My reluctance is more on what the slippery slope might be.”
But Meadows again stressed that this was an option for Trump and said he wouldn’t back legislation to restrict the president’s ability to declare a national emergency to bypass Congress.
Rep. Scott Perry (R-Pa.) ― another prominent Republican in the Freedom Caucus ― said he wasn’t going to rush to judgment.
“I would prefer the legislative option,” Perry said. “But if he keeps on trying and trying and trying, and the other side is so intractable that they refuse to discuss it, what other option do you have?”
Senate GOP leaders also had wishy-washy statements about the maneuver.
Senate Majority Whip John Thune (R-S.D.) said he thought a national emergency declaration was something Trump and the administration were reviewing. “Can he? Probably,” Thune said.
Thune’s predecessor as whip, John Cornyn (R-Texas), said the declaration shouldn’t be necessary “even if it is theoretically available to him.” He added that it would likely cause a lawsuit, “so that means rather than solving the problem in days, you’re looking at months or years until the issue is resolved.”
But Republicans aren’t exactly standing in the way of Trump declaring a national emergency to subvert Congress, even after Republicans were livid that Obama said he had a “pen and a phone” to ram through his legislative agenda.
Rep. Barry Loudermilk (R-Ga.) said he’d prefer Trump build the wall through a congressional appropriation so that he didn’t have to pull money from other military construction projects, “but it is a crisis that we do need to address.”
Mark Walker (R-N.C.) said he thought a national emergency declaration would get into “some gray area,” and said he would be “uneasy” with Trump building a wall that way, but he said he couldn’t “go out affirmatively and say he can’t do that.”
And even libertarian-minded Thomas Massie (R-Ky.) wouldn’t speak against Trump using a national emergency declaration to get around Congress.
“I haven’t considered the proposal seriously,” Massie said.
“If it’s an emergency, everyone will know it, and everyone doesn’t know it, so it’s not an emergency.”
Some Republicans entirely dodged the question. Rep. Sean Duffy (R-Wis.) said pieces about him in HuffPost “have not been the best, so I’m gonna give you no comment.” Rep. Kevin Brady (R-Texas) referred us to a statement about Trump’s address Tuesday night that did not answer questions about a national emergency declaration. And Rob Bishop (R-Utah) said he wasn’t “ready for hypotheticals.”
“When he does it, ask me,” Bishop said.
Of the lonely GOP voices opposing such a move, there weren’t many real repercussions offered if Trump went ahead with an emergency declaration. Sen. Lindsey Graham (R-S.C.) said that was not his preferred route, and he questioned whether Trump could legally do that, but he didn’t offer any recourse if he did.
Surprisingly, Rep. Roger Williams (R-Texas) said he didn’t support the president using a declaration to build the wall. “I think we need to go through Congress,” Williams said, agreeing that doing otherwise would amount to executive overreach.
And unsurprisingly, Rep. Justin Amash (R-Mich.) was the most vocal. “I’m totally against that,” Amash said.
Amash said he would even support legislation restricting the president’s ability to declare an emergency for purposes of building a wall, and suggested the situation at the border was not as dire as Trump or other Republicans made it out to be.
“If it’s an emergency, everyone will know it, and everyone doesn’t know it, so it’s not an emergency,” he said.
Asked what he thought about Republicans criticizing Obama for executive overreach and now standing by Trump as he toys with this idea, Amash was plain-spoken. “I think it’s embarrassing,” he said.
Igor Bobic contributed to this report.