President Donald Trump is keeping everyone in suspense as he considers whether to declare a national emergency to build his border wall.
Republican support for an emergency declaration is growing in some corners of the party, as GOP leaders and White House officials view it as a way out of a shutdown fight they’re losing. Others are unsure, viewing it as the kind of end-run around Congress that the Republican Party harshly criticized Barack Obama for doing.
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And many key Republicans are in the dark ahead of Trump’s Oval Office address on Tuesday, as Congress and the White House limp through a government shutdown now in its 18th day.
Though the president has yet to make a final decision, he is unlikely to declare a national emergency in his Oval Office address Tuesday evening, according to two sources with direct knowledge of the plans.
Senate Homeland Security Chairman Ron Johnson (R-Wis.) said he wasn’t sure which way Trump was leaning and that despite chairing a key immigration panel had not yet been read in by the White House: “I have no idea.”
“If there’s one thing that candidate Trump had a mandate on it’s securing the border and building the wall,” Johnson said. “That’s why President Trump is talking about declaring a national emergency. Because he’s not getting the Democrats to really put the money where their mouth is. They all say they want border security, just not that kind.”
Trump will hold a breakneck series of meetings Wednesday on and off Capitol Hill to try to build support for his position. The president will huddle with Senate Republicans for lunch at the Capitol Wednesday before a separate meeting with the top congressional leaders of both parties later in the afternoon at the White House.
Some of the president’s advisers argue an emergency declaration of a border crisis — to free up billions of dollars for Trump’s border wall — would allow Republicans to reopen the federal government without looking like they’ve caved to Democrats. Trump allies believe it would send an unmistakable message to the president’s base that he’s dead serious about border security.
It would also allow Trump and Republicans to save face, they note privately. GOP leaders on Capitol Hill know support for the shutdown is slowly eroding inside the party, as more moderate Republicans call for an end to the crisis. And so they’re advising Trump to make the case for executive action over the next few days should he decide to deploy it.
It’s clearly a fallback plan, but Republicans are preparing for its possibility.
“I’m sure he’d rather do it through a meeting, a productive one, between him and [Senate Majority Leader Chuck] Schumer and [Speaker Nancy] Pelosi. I think they both feel that’s maybe not materializing soon,” said Sen. Mike Braun (R-Ind.) in an interview. “If he sees no agreement coming, I think he’ll push the envelope.”
Stephen Miller, the outspoken immigration hawk and senior Trump adviser, is taking a leading role writing Trump’s remarks.
Still, there is internal disagreement in the White House about whether declaring a national emergency is a good idea — and, if Trump chooses to do so, about the appropriate timing and venue for such a declaration.
Several of the president’s outside advisers, including his former campaign chairman Stephen Bannon and former deputy campaign manager David Bossie, are urging him to take the more extreme course.
Others, however, are urging caution, telling the president that a legal challenge to his actions would be almost assured, putting Trump on course for a bare-knuckled fight with House Democrats and a grueling series of court challenges.
White House Counsel Pat Cipollone is among the voices urging caution when it comes to declaring a national emergency. The White House is studying options short of an emergency declaration but that would nonetheless give the president broad power to act.
The White House counsel’s office has been reviewing the legality of an emergency declaration since last Thursday, according to a source familiar with the process. They’ve been examining three potential avenues that would allow the president to mobilize personnel and tap into funds that are currently available for purposes not involving border security.
And as the president and his aides have considered the matter, the counsel’s office has also urged them to take actions to strengthen a potential legal defense, from making public references to a national security crisis on the Southern border to holding meetings on the matter in the White House Situation Room.
“These are things for lawyers to use in their briefs when they have to defend this,” said a source familiar with the discussions.
Democrats have already suggested declaring a national emergency to build the wall would be unconstitutional, arguing that Trump has no proof that an emergency actually exists and no authority to move around already-appropriated federal funds without congressional approval. Pelosi and Schumer will follow Trump’s address with their own rebuttal and will be sure to hit that point.
Vice President Mike Pence, who will huddle with Hill Republicans Tuesday night to discuss the shutdown and the possibility of Trump taking unilateral action, told NBC’s “Today” that Trump had not made a decision yet on how to proceed. Trump, however, will “explain to the American people that we have a humanitarian and security crisis at our southern border,” he said.
“It is a real crisis,” Pence said. “Tonight he will tell the American people why Congress should act.”
Pence and Homeland Secretary Secretary Kirstjen Nielsen will brief House Republicans Tuesday night before meeting with GOP senators on Wednesday. Multiple GOP leadership aides said they expected the House GOP conference to be open to the idea.
“I think that if Pence and Nielsen come in and do a hypothetical walk-through to members about how the process would work, and we could re-open the government by the end of the week, even tonight, so that paychecks weren’t affected, I think members would take that,” said a GOP leadership aide. “This emergency declaration could be an out for everybody.”
The U.S. Chamber of Commerce, a traditional GOP ally, is urging Congress and Trump to reopen the government, one of the clearest signs yet of concern that the 18-day funding lapse could affect the humming economy. In a letter to lawmakers, Chamber chief policy officer Neil Bradley said that “with each passing day, the situation will only get worse” and called for a broader immigration deal in exchange for border security.
Senate Majority Leader Mitch McConnell has yet to weigh in on the prospect of a national emergency declaration. Asked if Trump could or should declare one, the Kentucky Republican said he’d give a speech on Tuesday afternoon and otherwise declined to comment. In floor remarks later Tuesday, McConnell didn’t address the possible emergency declaration, instead dinging Democrats for blocking all Senate floor action until the government reopens.
“Democrat intransigence has made sure that a quarter of the federal government has been shut down for more than two weeks. Now they’re threatening to shut down the Senate, too,” McConnell said.
Congress alone has the power of the purse under the Constitution. But presidents are able to use unobligated military funds during a national emergency. Whether such a crisis exists, of course, is hotly contested, with Democrats noting that there are actually fewer border apprehensions this year than in past decades.
By backing what would be an explosive move, GOP leaders could open themselves up to accusations of hypocrisy. For years, they complained about what they viewed as executive overreach on immigration policy by former President Barack Obama. By supporting an emergency declaration by Trump without proof of an emergency — all to fulfill a campaign promise — Republicans would be greenlighting Trump’s moves to usurp congressional authority.
Trump would almost certainly face an immediate challenge in the courts, with a messy legal battle that could drag out for months if not years.
House Majority Leader Steny Hoyer (D-Md.) ripped Trump during a discussion with reporters Tuesday morning, calling him a “dictator” who is treating the U.S. like an autocratic country where rulers declare “martial law” to impose their will on the people when they can’t get their way.
“A problem exists but not a crisis that would justify him acting unilaterally,” Hoyer said. ““There is no crisis, there is no invasion, there is no clear and present danger.“
Republicans and White House officials who support the idea don’t care. Let the courts deal with it, they say. And Trump wouldn’t be accused of caving, they argue.
On Tuesday morning, Indiana Republican Rep. Susan Brooks said she would back Trump’s decision to declare a national emergency. The moderate-minded lawmaker cited the swelling number of child migrants who have crossed the border.
“I do think that this is a much greater crisis that we’ve seen in the past at the border. So if the president deems that a national emergency, then yes, I would support that,” she said in an interview with radio host Gordon Deal.
Not all GOP lawmakers are sold, however.
Some senior Hill Republicans worry announcing the emergency declaration followed by passage of Democratic spending bills would be viewed as a defeat within the party. Some believe Trump can win a shutdown fight against Democrats if he continues to hold out for $5 billion for the wall. Other Republicans said it could be difficult to endorse a process that circumvents Congress.
“In short, I am opposed to using defense dollars for non-defense purposes,” said Texas Rep. Mac Thornberry, the top Republican on the House Armed Services Committee.
Andrew Restuccia, John Bresnahan, Gabby Orr, Connor O’Brien and Sarah Ferris contributed to this report.