WASHINGTON — President Donald Trump will not trigger another partial government shutdown but is going to declare a national emergency in order to build a border wall without congressional approval, Senate Majority Leader Mitch McConnell announced Thursday.
Declaring a national emergency to fulfill a campaign promise is an unprecedented use of presidential powers, and is a legally dicey move. As recently as last week, Republican leadership publicly warned Trump that if he attempted to use emergency spending to build the wall it would be challenged in the courts through the end of his current term in office.
But on Thursday McConnell said on the Senate floor that he would support the emergency declaration.
White House press secretary Sarah Huckabee Sanders confirmed the move in a statement Thursday afternoon, saying Trump will sign the congressional spending bill and “take other executive action — including a national emergency — to ensure we stop the national security and humanitarian crisis at the border.”
Trump had spent the day mulling Congress’s newest spending package, which contained only $1.375 billion to build 55 miles of fencing. Trump had sought $5.7 billion for 200 miles of border barriers Congress has repeatedly rebuffed him.
Trump lost significant leverage this month when Democrats took control of the House of Representatives. Despite the border wall fight causing the longest government shutdown in US history, Trump ended up with less border security funding than was on the table in December.
Congress passed a spending bill Thursday to fund nine federal departments until Sept. 30, the end of the fiscal year (the rest of the federal government has already been funded through that date). Trump will have until end of day Friday to sign it into law and avert another government shutdown.
Trump had threatened an emergency declaration for weeks if he did not get funding for his border wall, a cornerstone of his campaign. The move is being made under the 1976 National Emergencies Act, under a provision that the administration contends would allow him to redirect federal funds toward building a wall on the southern border.
At odds with Trump's emergency declaration for the border is the fact that the numbers of people arrested at the border in between official border crossings has been on a decline since 2000's peak of 1.6 million.
In comparison, US Border Patrol agents arrested 396,579 people along the southern border in 2018. There has been a dramatic increase in the number of families showing up at the border. In 2018, about one-quarter of the 396,579 people arrested between official border crossings were families, compared to just 3% in 2012. For the most part, this group of people and also unaccompanied minors tend to seek out border agents once they cross into the US.
The emergency declaration, however, is likely just another salvo in the fight over wall funding — with congressional and legal challenges almost certain to follow in the days and weeks ahead. While McConnell said he would support the president’s national emergency, it’s unlikely that the Democrat-controlled House will agree.
House Speaker Nancy Pelosi told reporters that Democrats "may" file a legal challenge against the president's national emergency, calling that "an option," though noting that Democrats would have to see what Trump says first. "We will review our options. We will prepare to respond appropriately to it,” she said.
In a joint statement, she and Senate Minority Leader Chuck Schumer called Trump's plan "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," adding, "this is not an emergency, and the president’s fearmongering doesn’t make it one."
There are a couple of ways Congress could stop the president from moving forward with his plan to bypass the Senate and the House in order to fund the border wall.
Congress can pass a disapproval resolution, rejecting an emergency declaration. In addition to needing Republican support, the Senate and the House would also need to be prepared to pass the resolution with a two-thirds majority vote in order to override an almost certain Trump veto.
It's not clear how much support Trump will have from his own party on the national emergency. Shortly after the news broke, Thursday, Republicans seemed caught off guard. Florida Sen. Marco Rubio called the move "a bad idea," while Sen. Ron Johnson of Wisconsin called it "a pretty dramatic expansion of how this was used in the past."
Kentucky Sen. Rand Paul said he wasn't aware of the news, but noted, "I'm not in favor of operating the government by national emergency."
Texas Sen. John Cornyn, said he believed a national emergency wasn't "practical ... because there would be a lawsuit filed immediately. And the money would presumably be balled up."
In January, the White House considered a plan to declare a national emergency and take $13.9 billion in disaster relief funds from the U.S. Army Corps of Engineers to build the wall. That included recovery funds allocated to California and to Puerto Rico, which is still struggling to rebuild after Hurricane Maria devastated the island. Puerto Rico Governor Ricardo Rosselló indicated earlier this month that he is prepared to take legal action if the White House attempts to divert disaster relief funds from the island a wall and reiterated that on Thursday.
The U.S. Army Corps of Engineers did not respond to a request for comment on whether the agency has been involved in talks or received any communication from the White House about diverting that money if the president declares a national emergency.
On Feb. 4, Senate Democrats introduced the Restrictions Against Illegitimate Declarations for Emergency Re-Appropriations (RAIDER) Act, which would stop Trump from using an emergency declaration to divert the US Army Corps of Engineers and military construction funds to acquire land or construct the border wall not authorized by Congress. The bill would, however, face an uphill battle in the Republican-controlled Senate — and would still face a potential veto even if it did pass both chambers of Congress.
In addition to congressional pushback, the president’s emergency declaration is also likely to be challenged in court, joining a long list of Trump administration policies stalled by lawsuits. Members of Congress had already been laying the groundwork for a legal challenge to the move before Trump even announced the emergency declaration.
Allison Zieve, litigation director for Public Citizen, told BuzzFeed News that the group is already preparing to file a lawsuit challenging the declaration of a national emergency on behalf of a group of residents in Texas, including borderland owners and a Texas environmental group.
It's unknown exactly how the administration will legally justify funding the wall with an emergency declaration, but it's believed he could use two provisions in the US code having to do with military construction not authorized by law and another the use of the Army's civil works resources to construct projects essential to national defense.
Brian Segee, a senior attorney at the Center for Biological Diversity, told BuzzFeed News that they're also getting ready to go to court, but the details of any lawsuit will depend on what the president actually signs. The center is already in court challenging efforts by the Trump administration to expedite border wall construction in New Mexico and Texas. "I anticipate we would look to be in court pretty quickly," he said.
Democrats have also openly suggested that Trump is now giving them precedent to use emergency powers in the future to advance their own policy goals.
Pelosi on Thursday said the precedent "is something that should be met with great unease and dismay," but she also warned that it could lay the groundwork for an emergency declaration on gun violence by a future Democratic president.
“If he were to do this it would absolutely open the door to a Democratic president declaring a health care emergency, an immigration emergency, a climate change emergency," said Sen. Chris Murphy. "Once the horse runs out of the barn on expansive national emergency powers, nobody’s putting it back in."
Democratic Sen. Chris Coons said he was "surprised that Leader McConnell, who is both an appropriator and an institutionalist, would embrace ... the idea of the president using an emergency declaration on the current fact pattern to justify an end run of the constitutionally created congressional role in appropriations."
Coons called it a "simply terrible idea that we will all live to regret."
The spending bill being moved through Congress does not contain back pay for thousands of contractors. While government employees received back pay automatically when the last shutdown ended, contract workers such as cleaners and security guards may miss out on five weeks of pay. It is a financially devastating outcome for many workers.
Nidhi Prakash, Lissandra Villa, and Zoe Tillman contributed reporting to this story.