White House read­ies emergency plan

Army Corps bud­get eyed for fund­ing bor­der wall

The Washington Post - - FRONT PAGE - BY ER­ICA WERNER, JOSH DAWSEY, MIKE DEBONIS AND SE­UNG MIN KIM

The White House has be­gun lay­ing the ground­work for a dec­la­ra­tion of na­tional emergency to build Pres­i­dent Trump’s bor­der wall, a move cer­tain to set off a firestorm of op­po­si­tion in Con­gress and the courts but one that could pave the way for an end to the three-week govern­ment shut­down.

The ad­min­is­tra­tion is eye­ing un­used money in the Army Corps of En­gi­neers bud­get, specif­i­cally a dis­as­ter spend­ing bill passed by Con­gress last year that in­cludes $13.9 bil­lion al­lo­cated but not spent for civil works projects, two peo­ple with knowl­edge of the de­vel­op­ments said Thursday.

Trump has urged the Army Corps to de­ter­mine how fast con­tracts could be signed and whether con­struc­tion could be­gin within 45 days, ac­cord­ing to one of the peo­ple who spoke on the con­di­tion of anonymity to de­scribe the prepa­ra­tions.

The list in­cludes dozens of flood con­trol projects in ar­eas af­fected by re­cent nat­u­ral dis­as­ters, in­clud­ing the Texas coast­line in­un­dated by Hur­ri­cane Har­vey and parts of Puerto Rico bat­tered by Hur­ri­cane Maria. The mil­i­tary con­struc­tion bud­get is also be­ing

looked at as a po­ten­tial source for un­spent funds, with bil­lions more po­ten­tially avail­able there.

The prepa­ra­tions are tak­ing place with talks at an im­passe over Trump’s de­mands for $5.7 bil­lion to con­struct more than 200 miles of wall along the U.S.-Mex­ico bor­der. Democrats are staunchly op­posed, lead­ing to a par­tial govern­ment shut­down that on Saturday will be­come the long­est in U.S. his­tory.

Some 800,000 fed­eral work­ers are about to miss their first pay­checks since the shut­down be­gan Dec. 22, and prob­lems plagu­ing shut­tered na­tional parks, food in­spec­tion pro­cesses and other fed­eral ser­vices are mul­ti­ply­ing.

The Se­nate unan­i­mously passed leg­is­la­tion Thursday that would guar­an­tee back pay to fur­loughed fed­eral work­ers once the shut­down ends, al­though thou­sands of govern­ment con­trac­tors who have been fur­loughed may never re­coup their losses.

Trump, who walked out of a White House ne­go­ti­at­ing ses­sion Wednesday af­ter House Speaker Nancy Pelosi (D-Calif.) re­fused to agree to pay for his wall, re­it­er­ated Thursday that he may de­clare a na­tional emergency if Democrats don’t give him what he wants.

“Now if we don’t make a deal with Con­gress, most likely I will do that,” Trump said to Fox News host Sean Han­nity about an emergency dec­la­ra­tion in an interview that aired Thursday night. “I would ac­tu­ally say I would. I can’t imag­ine any rea­son why not be­cause I’m al­lowed to do it. The law is 100 per­cent on my side.”

The pres­i­dent and mem­bers of his ad­min­is­tra­tion have been de­pict­ing a hu­man­i­tar­ian and pub­lic safety cri­sis at the bor­der, fo­cus­ing on drugs flow­ing into the United States and vi­o­lence by unau­tho­rized im­mi­grants. There was a sig­nif­i­cant uptick in bor­der ap­pre­hen­sions in 2018, ac­cord­ing to data from U.S. Cus­toms and Bor­der Pro­tec­tion, es­pe­cially of im­mi­grant fam­i­lies, but bor­der ap­pre­hen­sions re­main much lower than the high lev­els seen in the 1980s through the 2000s.

Asked about a timetable for a na­tional emergency dec­la­ra­tion, pres­i­dent said he would see how it goes with Con­gress.

But on Capi­tol Hill there were no signs of progress, and in­stead law­mak­ers of both par­ties were brac­ing for Trump to de­clare a na­tional emergency. Democrats were ex­plor­ing their op­tions on how to re­spond.

Demo­cratic staffers from lead­er­ship of­fices and rel­e­vant committees met Thursday af­ter­noon to dis­cuss a po­ten­tial re­sponse. Ac­cord­ing to an at­tendee, the meet­ing fo­cused on un­der­cut­ting any case that the bor­der sit­u­a­tion con­sti­tuted a na­tional emergency un­der the le­gal def­i­ni­tion, and high­light­ing projects that might be put at risk if Trump were to raid other ac­counts to fund the wall.

House Demo­cratic lead­er­ship staff has ex­plored the pos­si­bil­ity of a law­suit against the ad­min­is­tra­tion. Al­though no fi­nal de­ter­mi­na­tions have been made, the cur­rent think­ing is that Con­gress prob­a­bly would not have stand­ing to sue, ac­cord­ing to a lead­er­ship aide.

State at­tor­neys gen­eral or peo­ple di­rectly af­fected by a bor­der wall — such as landown­ers who have prop­erty along the U.S.-Mex­ico bound­ary — would prob­a­bly have to file the law­suit, and the House could file a friend-of-the­court brief.

Pelosi de­clined to say how the House would re­spond to a na­tional emergency dec­la­ra­tion when ques­tioned at a news con­fer­ence Thursday.

“If and when the pres­i­dent does that, you’ll find out how we will re­act,” Pelosi said. “But I think the pres­i­dent will have prob­lems on his own side of the aisle for ex­ploit­ing the sit­u­a­tion in a way that en­hances his power.”

In­deed, a num­ber of Repub­li­cans have ex­pressed qualms or out­right op­po­si­tion about Trump declar­ing a na­tional emergency, in­clud­ing mem­bers of the House Armed Ser­vices Com­mit­tee who ob­ject to the prospect of the ad­min­is­tra­tion tar­get­ing funds within the Pen­tagon’s mil­i­tary con­struc­tion bud­get.

Oth­ers cau­tioned against the ad­min­is­tra­tion tak­ing ex­ec­u­tive ac­tion on an is­sue that should be Con­gress’s purview.

“It’s not the way to do it. I can un­der­stand why they’re look­ing at said Rep. Mike Simp­son (RI­daho). “I don’t like the idea of pulling money out of de­fense and mil­i­tary con­struc­tion and the Army Corps of En­gi­neers. That’s not a good op­tion.”

Asked Thursday whether she would sup­port Trump in­vok­ing na­tional se­cu­rity powers to start wall con­struc­tion, Sen. Lisa Murkowski (R-Alaska), an Ap­pro­pri­a­tions Com­mit­tee mem­ber, replied: “No.”

Dan Eber­hart, a GOP donor who is of­ten sup­port­ive of Trump, said, “Weaponiz­ing a na­tional emergency to achieve a pol­icy ob­jec­tive is usu­ally some­thing that hap­pens in ba­nana re­publics, not Ge­orge Wash­ing­ton’s repub­lic.”

But other Repub­li­cans were ready for Trump to take the step.

In a state­ment Thursday, Sen. Lind­sey O. Gra­ham (R-S.C.) ac­cused Pelosi of in­tran­si­gence that has brought talks to an end, and said that “it is time for Pres­i­dent Trump to use emergency powers to fund the con­struc­tion of a bor­der wall/barrier.” “I hope it works,” Gra­ham added. “There’s no ques­tion, it’s per­fectly le­gal,” said Rep. Dou­glas A. Collins (R-Ga.). “I wish we didn’t have to.”

While most Democrats said Trump would be act­ing reck­lessly and il­le­gally if he de­clared a na­tional emergency, some were open to the ap­proach.

“Hon­estly I would be glad, bethe cause then it would get shut down in court and we could move on,” said Rep. Katie Hill (D-Calif.), a freshman who un­seated a Repub­li­can in a swing sub­ur­ban district. “Hope­fully he fig­ures that out pretty quick.”

One Demo­cratic aide called an emergency dec­la­ra­tion an “el­e­gant way out of this mess” — one that would al­low Trump and Repub­li­cans to de­clare to their most fer­vent sup­port­ers that they had taken Democrats to the brink, while Democrats would quickly move to tie up any con­struc­tion in the courts.

The House and Se­nate could move quickly to pass a bill to re­open the govern­ment, pred­i­cated on as­sur­ances from Trump that he would sign the leg­is­la­tion.

How­ever, con­ser­va­tive Rep. Mark Mead­ows (R-N.C.), who talks fre­quently with Trump, cau­tioned that a dec­la­ra­tion of a na­tional emergency would not nec­es­sar­ily lead to re­open­ing the govern­ment.

Many Democrats also say that an emergency dec­la­ra­tion would ben­e­fit them po­lit­i­cally by uni­fy­ing them while split­ting Repub­li­cans, cre­at­ing un­ease among con­ser­va­tives who have ex­pressed dis­com­fort with a pres­i­dent sidestepping Con­gress in a way they might see as sim­i­lar to how Pres­i­dent Barack Obama cir­cum­vented Con­gress on im­mi­gra­tion.

The pres­i­dent has var­i­ous powit,” ers to act uni­lat­er­ally, some claimed as in­her­ent in the Con­sti­tu­tion, oth­ers specif­i­cally del­e­gated by Con­gress. On Capi­tol Hill, most law­mak­ers and aides are an­tic­i­pat­ing a dec­la­ra­tion un­der the 1976 Na­tional Emer­gen­cies Act, which set out a for­mal process for declar­ing an emergency — and for Con­gress re­vok­ing it.

To over­ride an emergency dec­la­ra­tion, both houses of Con­gress would have to pass a res­o­lu­tion do­ing so and present it to Trump for his sig­na­ture — one he would pre­sum­ably veto.

The ad­min­is­tra­tion can ex­pect a flood of court chal­lenges if it pro­poses to build a wall with­out ex­plicit con­gres­sional au­tho­riza­tion. In­deed, a num­ber of or­ga­ni­za­tions are prepar­ing for lit­i­ga­tion, just wait­ing to see ex­actly what the pres­i­dent does.

“The use of emergency powers to build a wall is un­law­ful, and we are pre­pared to sue as needed,” said Lee Gel­ernt, deputy di­rec­tor of the Amer­i­can Civil Lib­er­ties Union Im­mi­grants’ Rights Project, which has helped ob­tain dozens of court orders block­ing Trump ad­min­is­tra­tion im­mi­gra­tion poli­cies.

“There’s go­ing to be a lot of law­suits,” said Brian Segee, se­nior attorney for the Cen­ter for Bi­o­log­i­cal Di­ver­sity. “We are prepar­ing” for pos­si­ble lit­i­ga­tion now, he said.

Even as the dis­cus­sions over a na­tional emergency dec­la­ra­tion were tak­ing place, a fi­nal glim­mer of hope for a way out of the im­passe was ex­tin­guished when Gra­ham de­clared talks over among a small group of Repub­li­can sen­a­tors who had been meet­ing to dis­cuss some kind of broader deal to end the shut­down.

These deal-minded Se­nate Repub­li­cans had shut­tled Thursday morn­ing be­tween meet­ings with Se­nate Ma­jor­ity Leader Mitch Mc­Connell (R-Ky.) and Vice Pres­i­dent Pence, bat­ting around a pro­posal that would in­clude Trump’s de­sired $5.7 bil­lion in wall fund­ing, and a re­new­able, three-year sta­tus for cer­tain im­mi­grants brought il­le­gally to the coun­try as chil­dren, along with other pro­vi­sions.

But by midafter­noon Thursday, Pence poured cold wa­ter on the idea, telling re­porters at the Capi­tol that Trump wanted to wait on try­ing to make a deal for “dream­ers” un­til the Supreme Court had ruled on the De­ferred Ac­tion for Child­hood Ar­rivals pro­gram, the Obama-era pro­gram that granted pro­tec­tions to these im­mi­grants.

Gra­ham was glum af­ter­ward about where things stood, say­ing he has “never been more de­pressed about mov­ing for­ward than right now.” Not long af­ter that he is­sued his state­ment back­ing a na­tional emergency dec­la­ra­tion.

At the same time, House Democrats pressed for­ward with their strat­egy of pass­ing in­di­vid­ual spend­ing bills to re­open por­tions of the fed­eral govern­ment that have been closed in the shut­down.

The House on Thursday passed two more spend­ing bills that would open parts of the govern­ment that have noth­ing to do with bor­der se­cu­rity, largely with Demo­cratic votes. A hand­ful of Repub­li­cans joined Democrats in supporting those bills — 12 for a bill fund­ing the de­part­ments of Trans­porta­tion and Hous­ing and Ur­ban Devel­op­ment, and 10 for a bill fund­ing the Agri­cul­ture Depart­ment, the Food and Drug Ad­min­is­tra­tion and other agen­cies.

But Trump has made clear he would veto these bills, and Mc­Connell has said re­peat­edly that he will not bring up any leg­is­la­tion that doesn’t have Trump’s sup­port.

“There’s no wall, there’s no deal,” Pence told re­porters on Capi­tol Hill.

LEAH MIL­LIS/REUTERS

Pres­i­dent Trump and bor­der agents salute a U.S. Bor­der Pa­trol he­li­copter as it flies over the Rio Grande dur­ing the pres­i­dent’s visit to the U.S.-Mex­ico bound­ary in Mis­sion, Tex. Trump has said he may in­voke na­tional se­cu­rity powers to start wall con­struc­tion.

ERIC GAY/AS­SO­CI­ATED PRESS

Groups for and against a wall be­ing built along the U.S. bor­der with Mex­ico gather out­side McAllen In­ter­na­tional Air­port in Texas as they wait for Pres­i­dent Trump to ar­rive for a visit.

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