- The Washington Times - Tuesday, February 5, 2019

Even as President Trump argued the case for his border wall Tuesday, one thing was missing — the emergency declaration that would allow him to leapfrog over lawmakers and build the barrier even without Congress’s approval.

The White House said Mr. Trump is letting the process play out and still views the emergency as a real possibility.

But the president is also seeing a chilly reception to the idea, even from Republicans on Capitol Hill who said Tuesday there’s a chance Congress would not only object, but could muster the votes to defeat Mr. Trump’s plan.

Senators from Majority Leader Mitch McConnell on down oppose an emergency declaration, with objections ranging from Congress’s constitutional control of the purse strings to fears that the money would be siphoned from their own pet military and public works projects.

Sen. Roy Blunt, Missouri Republican, doubted Mr. Trump would have enough support among Senate Republicans to reject a “resolution of disapproval” that would almost certainly emerge from the Democratic-led House.

“I don’t know that he would,” said Mr. Blunt, who said he’d advise Mr. Trump against going that route. “Let’s see exactly how the president does it, and how he proposes to pay for it, and if he does it.”

Republicans say they’re still fighting for wall money in ongoing negotiations over the Homeland Security spending bill.

Congress is facing a Feb. 15 deadline to get a deal done, or else risk another government shutdown.

Mr. Trump on Tuesday pleaded with them to include wall money, pointing out the hypocrisy of Democrats’ new opposition.

“In the past, most of the people in this room voted for a wall — but the proper wall never got built. I will get it built,” the president vowed.

But he avoided any hint of an emergency declaration.

Hoping to convince Democrats of the need for fencing, Senate Appropriations Committee Chairman Richard Shelby announced a closed-door meeting Wednesday for negotiators to hear directly from the Border Patrol about why they want a wall.

Democrats doubted they would be swayed. Senate Minority Whip Richard Durbin of Illinois, the No. 2 Democrat in the upper chamber, said Tuesday he still doubts his party will allow any wall money in the final package the group produces.

“I don’t have any reason to believe otherwise,” he said.

That resistance has left Mr. Trump eyeing the emergency route.

There are several different ways he could do that, though, and each carries different risks and rewards.

How much and what kind of fencing he can build depends on which legal authority he uses. One option would allow him to skip an emergency declaration and use the Pentagon to build walls under existing counter-drug authority.

But if he still wants to build hundreds of miles of barriers, he would likely have to trigger a 1976 law that lays out his emergency powers, and gives Congress a way to fight him.

The law allows for a resolution of disapproval to pass on majority votes in both chambers.

Republicans hold an effective 53-47 majority in the Senate, meaning it would take four GOP defections to reject the president’s move, assuming Democrats remain unified against him.

Mr. Trump would likely use his veto, which would then mean both chambers would need to muster two-thirds majorities to overrule him.

Mr. Blunt said it’s tough to say whether the votes are there.

“I think we’re really way into hypothetical territory there, and probably the best advice is to wait and see what happens and give whatever advice privately we can about those topics,” he said.

Senate Majority Whip John Thune, South Dakota Republican, declined to say how he would vote if it gets to that point and said it’s “hard to say” how the votes would break down under such a hypothetical scenario.

“But as a lot of our members have pointed out, they have real concerns about that approach for all the obvious reasons,” he said. “The precedent it creates for a future Democrat president to find lots of reasons to declare an emergency, and the questions about separation of powers, and checks and balances.”

Yet other GOP senators said they think Mr. Trump’s support may be stronger than believed.

Sen. John Kennedy said that while an emergency declaration isn’t his preference, he would vote to support the president and predicted that GOP senators expressing concerns ultimately would do the same.

“If the president does it, I’m willing to bet you that a lot of the Republicans that are saying it’s a bad idea and he shouldn’t do it — they’ll vote to support him. Now, I could be wrong. I’m going to vote to support him,” the Louisiana Republican said on CNN.

Sen. Lindsey Graham, South Carolina Republican and a top Trump ally who speaks frequently with the president, said he’d like Mr. Trump to try to rally support for a deal that would include border wall funding, plus protections for illegal immigrant “Dreamers” under the Obama-era DACA program and other immigrants in the country under Temporary Protected Status.

“It doesn’t seem like there’s much market for that, so just don’t shut down the government, use the power you have under statutory authority and commander-in-chief and go ahead and do it,” Mr. Graham said.

Even if Congress failed to block the president, he’ll face an onslaught of legal challenges.

California Attorney General Xavier Becerra, delivering Democrats’ Spanish-language response to Mr. Trump on Tuesday, said he’ll be first in line to sue.

“The idea of declaring a nonexistent state of emergency on the border, in order to justify robbing funds that belong to the victims of fires, floods, hurricanes, and droughts, to pay for the wall is not only immoral, it is illegal,” he said. “We are ready to reject this foolish proposal in court the moment it touches the ground.”

The Congressional Research Service, in a legal memo last month, said depending on which authority Mr. Trump triggers, courts could have a novel case on their hands.

“Because there does not appear to be case law addressing the scope of this definition of ‘military construction,’ the question of whether Section 2808 extends to the construction of a border wall appears to be an issue of first impression,” the CRS said.

Even if emergency powers could be triggered, it’s not clear whether the Pentagon has the same ability to waive environmental laws that Homeland Security has.

• S.A. Miller contributed to this report.

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