While federal courts may ultimately have to decide that question, Republican senators almost certainly will have to take a public stand on it, one way or the other, possibly within a few weeks of an anticipated declaration that has support within Trump’s base but nowhere else.
“It won’t be without controversy,” Senate Majority Leader Mitch McConnell told Fox News this week, just days after meeting privately with Trump on the matter in the Oval Office. “If he goes that route we’ll just hash it out.”
Trump has been threatening for months to declare a “national emergency” and divert money from other programs to build hundreds of miles of wall along the Mexican border if Congress does not appropriate $5.7 billion for the project. He previously forced a 35-day partial government shutdown over the issue. He had claimed he would not let it end until he got the money, but wound up caving after 800,000 federal workers — including his own Secret Service detail — began their second month without a paycheck.
Now, many Trump allies say he has no choice if Congress again refuses to give him what he wants in the Department of Homeland Security spending bill currently under negotiation by a House-Senate conference committee.
One former White House official said on condition of anonymity that Trump would lose a significant percentage of his supporters if he did not deliver on the wall, a campaign promise he first made on the day he announced his presidency.
“It’s the only way he gets it done,” said another Republican adviser close to Trump, also on condition of anonymity, adding that the politics make sense for Trump even if the money is taken from hurricane reconstruction projects in Texas, Florida and Puerto Rico.
The adviser added that the Republican governors of Texas and Florida would back Trump. “And screw Puerto Rico,” the adviser said. “Puerto Rico doesn’t have electoral votes last time I checked.”
What Trump wants and what Trump can get away with, though, may be two different things.
While Trump has the authority to declare a “national emergency,” the same law that allows him to do so also lets Congress end that emergency by passing a bill — a bill that, unlike most in the Senate, cannot be blocked by the majority leader from coming to the floor and which needs 51 votes, rather than the usual 60, to pass.
One of those 51 is likely to be Mississippi Republican Roger Wicker. “I would be inclined to vote for the resolution of disapproval,” he said of the possible emergency declaration. “I think it’s bad law and I think it’s bad strategy for the president.”
Keeping The Public Scared
Trump and his White House, of course, argue that the situation at the southern border is a national security crisis and clearly constitutes an “emergency” that a president has the power to act on unilaterally. Yet that argument may be undone by Trump’s own words and actions about the necessity for the wall, which have waxed and waned with the politics of the moment.
Migrant caravans, for example, have existed for years, as refugees escaping violence in their home countries and those seeking a better life band together traveling north across Central America and Mexico. But Trump only started warning about them as a threat to U.S. citizens in April 2018, with midterm elections on the horizon, claiming that they were filled with “gang members” and “very bad people.”
When the November election passed, so did Trump’s interest in the caravans. The daily drumbeat disappeared. Trump did not bring up “caravans” until 10 days after the election, as a December deadline for a government spending bill started drawing near.
Trump critics also point to his tendency to play up violent crimes committed by illegal immigrants, even though illegal immigrants are less likely to commit crimes than native-born Americans. Trump invited the family of an elderly Nevada couple allegedly killed by an illegal immigrant to his State of the Union speech this week to build his case for a border wall. But he has ignored last month’s shooting of four Houston police officers by a pair of white, middle-aged drug dealers as well as the execution-style killings of five women at a Florida bank a week earlier. A 21-year-old Indiana native — also white — has been charged in those slayings.
“He continues to activate fear in the public with things that he knows will scare them. That’s his MO. It’s not new,” said Wendy Feliz, spokeswoman for the American Immigration Council. “Unfortunately, it works, among some people. But it’s really cynical politics.”
Triggering A National Emergency
Cynical or not, Trump appears to be holding with that strategy in the days remaining before a quarter of the government again runs out of spending authority on Feb. 15.
Trump is planning a re-election campaign rally on Feb. 11 in El Paso, Texas, a city Trump has repeatedly — and falsely — claimed had a high crime rate until a fence was constructed along its border with Mexico.
“The border city of El Paso, Texas, used to have extremely high rates of violent crime ― one of the highest in the entire country, and considered one of our nation’s most dangerous cities,” Trump said in his State of the Union speech Tuesday. “Now, immediately upon its building, with a powerful barrier in place, El Paso is one of the safest cities in our country. Simply put: Walls work, and walls save lives.”
That brought a rebuke from the city’s mayor the next day. “We are considered the safest city with a population greater than 500,000,” Dee Margo, a Republican, told MSNBC. “I talked to our police chief, through his staff, today, and found out in 2008, we were like second. In 2009, after the fence was built, we were still second. But we’ve progressed to be the No. 1 safest city in the nation.”
Primarily Republican senators and primarily Democratic House members are likely to deliver a compromise spending plan next week that likely will not have anywhere near the $5.7 billion Trump has demanded as a down payment for the $25 billion wall he once insisted he would make Mexico pay for.
While Trump could choose to veto a spending bill and trigger another shutdown, his GOP allies believe he is more likely to declare a national emergency and try to divert money from already approved projects in the budgets for the Federal Emergency Management Agency and the Army Corps of Engineers.
Doing so would likely trigger lawsuits as well as the drafting and passage of a “joint resolution” of disapproval in the Democratic-controlled House. After it is sent to the Senate, it can be called to the floor after 15 days, and McConnell would have no power to block it.
What’s more, that particular resolution is not subject to a filibuster, meaning it would need only 51 votes to pass, not 60. Trump could only afford to lose three Republicans — and could possibly lose a good deal more.
Some Republican senators worry about ceding too much power to Trump, particularly on spending matters, because he could set a precedent that subsequent Democratic presidents could use to declare national emergencies for, say, climate change or universal health care.
“I’m urging the president to tread carefully,” said Texas Republican John Cornyn.
Susan Collins and John Thune, of Maine and South Dakota, both told reporters this week that they hope Trump does not declare a national emergency. Missouri’s Roy Blunt said that he, too, was not a fan of the approach. “I think I’ve expressed serious concern about going down that path but let’s wait and see what the president does before we decide,” he said.
Their advice, though, may be falling on deaf ears. In his most detailed remarks on the topic recently, Trump appeared to have made up his mind. “I think there’s a good chance we’ll have to do that,” he told reporters late last week. “We will be looking at a national emergency, because I don’t think anything is going to happen. I think the Democrats don’t want border security.”
If Congress were to pass the disapproval measure, Trump would have the opportunity to veto it. It would be his first veto of any bill yet in two years in office – and would immediately set up the possibility of an override vote.