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Homeland Security

Trump Retains Explosive Wildcard in Battle Over Border Security

By Michael Bowman February 10, 2019

President Donald Trump's planned trip Monday to the border city of El Paso, Texas comes days before U.S. government funding is due to lapse once again and as suspense builds over Trump's vague but persistent threat to declare a national emergency if Congress declines to pay for wall construction along the U.S.-Mexico border.

"The president really does believe that there is a national security crisis and a humanitarian crisis at the border, and he will do something about it," White House Chief of Staff Mick Mulvaney said Sunday on NBC's Meet the Press program. "He's going to do whatever he legally can to secure that border."

"I do expect the president to take some kind of executive action, a national emergency is certainly part of that … if we [lawmakers] don't reach a [border security] compromise," North Carolina Republican Rep. Mark Meadows said on CBS' Face the Nation program. "This president is going to build a wall one way or another."

Democrats insist there is still time for a politically divided Congress to forge and pass a spending bill that strengthens America's southern border.

"Nobody wants a shutdown, nobody wants the president to use some kind of emergency powers," Montana Democratic Sen. Jon Tester said on Fox News Sunday. "We just need to do our job, and we can do it."

'I'll get it built'

Trump was resolute at last week's State of the Union address to Congress.

"Where walls go up, illegal crossings go way down," the president said. "I'll get it built."

So far, no deal has been reached by a bipartisan bicameral conference committee tasked with finding a compromise on border security before U.S. government funding expires on Friday. But Trump holds a wildcard - his authority as commander-in-chief to declare a national emergency and bypass Congress altogether.

"I don't think anybody questions his legal authority to declare a national emergency," Republican House Minority Leader Kevin McCarthy of California said late last week.

"That would be a gross abuse of power, in my view," Maryland Democratic Sen. Chris Van Hollen told VOA. "It's pretty clear you can't declare an emergency just because you can't get your way 100 percent in the Congress. So let's try and work this out through the normal process."

In the abstract, the president's authority to declare a national emergency is not in question.

"It turns out that the federal statute books are actually littered with hundreds of places where a president can declare national emergencies in various contexts," George Washington University law professor Paul Schiff Berman said, who added that some statutes do allow a president "to move around money within the federal budget to address the emergency."

The catch

But there is a catch: the very concept of an emergency as a sudden and dire situation.

"All of these statutes were written it appears with the idea that every once in a long while, there would be a true crisis–could be a natural disaster, could be a foreign invasion, something like that–where the need to act quickly was so important that the president would need these national emergency powers because there just wouldn't be enough time for Congress to convene," Berman said. "None of those [envisioned situations] would apply in a case like building a wall which is going to take many, many years, if it ever happens at all."

A national emergency declaration from Trump would almost certainly trigger swift lawsuits as well as congressional action to overturn it.

"There is, within the law, the ability of Congress to stop a national emergency," political analyst John Hudak of the Washington-based Brookings Institution said. "It requires both houses of Congress to vote to say that the national emergency is over. Now Democrats can certainly do that alone in the House. They cannot, however, do it alone in the Senate; it would require several Republican votes."

'Serious constitutional question'

Already, some Republicans have expressed unease about Trump suggesting he might act on his own.

"The whole idea that presidents -- whether it's President Trump, [hypothetically] President [Elizabeth] Warren or [hypothetically] President [Bernie] Sanders - can declare an emergency and somehow usurp the separation of powers and get into the business of appropriating money for specific projects without Congress being involved, is a serious constitutional question," Texas Republican Sen. John Cornyn told reporters last week.

By contrast, Florida Republican Senator Rick Scott warmed to the prospect.

"[House Speaker] Nancy Pelosi said there is not going to be funding for a wall. I think the president ought to use his emergency power to try to secure the border and, if he's going to do that, I think he ought to look at trying to get a permanent fix to DACA [protections for undocumented immigrants brought to America as children] and TPS [protected status for refugees and others fleeing hardship]."

Democrats, meanwhile, are united in opposition.

"Declaring a national emergency, particularly when there is no national emergency, would be a significant mistake. It is clear that a growing number of Republicans share that view, and I hope the president doesn't go that route," Oregon Democratic Sen. Ron Wyden told VOA.

Trump appeared undeterred, tweeting on Saturday, "The Wall will get built one way or the other!"

Urgency questioned

The president has argued that America's safety is imperiled as a result of illegal narcotics and migrants entering the United States. Some observers note that America's border security deficiencies are hardly new or sudden.

"I think a lot of Americans look at this skeptically and say, 'What has changed between the beginning of the president's term and now that makes this such a dire emergency?'" Hudak said.

Some see grave potential risks if Trump goes forward with an emergency declaration.

"[I]f it is misused, it essentially becomes like a president declaring martial law and taking over the powers of Congress. It's the sort of thing that we would look at another country doing and say that's a big problem," Berman said.

Nevertheless, the president faces intense pressure to deliver on his border wall promise, according to Brookings Institution political analyst William Galston, who says, politically, Trump is "in a box."

"The president has used the issue of the wall to cement the bond between himself and his core supporters and he would probably incur significant political damage if he were seen by them to be standing down, surrendering, or accepting a compromise that they don't think he should," Galston said.

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