- The Washington Times - Thursday, February 28, 2019

An influential Republican senator urged President Trump on Thursday to rethink his border emergency declaration and come up with other money he can use to build his border wall.

Sen. Lamar Alexander, Tennessee Republican, said the president can get the $5.7 billion he originally asked for — though not the $8 billion he now seeks — by moving money within the Pentagon budget under authority he already has.

None of that would require an emergency declaration, putting the president on firmer legal footing and backing away from a constitutional clash that could create a dangerous precedent for future chief executives.

“If President Trump can build a wall when Congress has refused to provide the funding, then the next president can declare a national emergency and tear the wall down or declare a climate change emergency and stop oil exports and offshore drilling,” Mr. Alexander warned. “There is no limit to the imagination of what the next left-wing president could do to harm our country with this precedent.”

Democrats say Republicans should count on that happening if Mr. Trump’s move is successful.

The president two weeks ago signed a spending bill that grants him $1.375 billion in wall-building money.

But he also said he would shift $601 million in forfeited money sitting in a treasury account, and $2.5 billion he’ll move into a drug interdiction account, and use those funds for more wall-building.

And he signed an emergency declaration for the border, triggering the National Emergencies Act, and claiming powers to grab another $3.6 billion in money from military construction funds.

All told, that gives him more than $8 billion in wall money.

The emergency declaration has gotten most of the attention — and it’s drawn the lion’s share of legal debate in five separate lawsuits already filed challenging Mr. Trump’s actions.

Mr. Alexander said the president could avoid much of that trouble if he’s willing to settle for his original $5.7 billion.

The $1.375 billion Congress approved, combined with the $601 million in forfeited money and the $2.5 billion in drug interdiction money gets him to nearly $4.4 billion.

Mr. Alexander said the law gives the president the ability to move up to $4 billion in drug interdiction money, so he could tap $1.5 billion more, getting him to nearly $6 billion in total wall money without needing the emergency declaration.

“It avoids establishing a dangerous precedent, which could be misused by subsequent presidents. It avoids taking money for military construction projects specifically approved by Congress such as military barracks and hospitals. And it also avoids months or years of litigation, which could make it unlikely the full 234 miles are ever built,” Mr. Alexander said.

Even as Mr. Alexander was making his appeal on the Senate floor, a House committee was debating the legality of the president’s move.

Jonathan Turley, a law professor at George Washington University, said he disagrees with the president’s policy, but said Mr. Trump is on pretty firm legal footing under the expansive 1976 National Emergencies Act.

“This is a national emergency because the president says it is, because you gave him that authority,” Mr. Turley told the Judiciary Committee. “I don’t see how a court is going to substitute its authority as to what an emergency is when the law itself doesn’t even define it.”

He also agreed that even if a court were to block the emergency money, the other money Mr. Alexander identified would survive.

Stuart Gerson, who is representing the Texas city of El Paso in one of the lawsuits against Mr. Trump’s declaration, said he still thinks a judge can rule against the emergency “because it lacks all the objective criteria any emergency would have to have.”

Mr. Turley doubted that’s the eventual outcome.

“You might find a judge like that, but at the end of the day I don’t think you’re going to prevail,” he said. “The president ran on this being a national security concern. He won. And he declared this to be a national emergency.”

Mr. Turley did urge Congress to step in and clean up the 1976 law to prevent future expansive claims.

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