Trump de­clares emer­gency at bor­der

LE­GAL, PO­LIT­I­CAL FIGHTS LIE AHEAD Move to get wall money tests pres­i­den­tial power

The Washington Post - - FRONT PAGE - BY DAMIAN PALETTA, MIKE DEBO­NIS AND JOHN WAG­NER

Pres­i­dent Trump on Fri­day de­clared the sit­u­a­tion on the south­ern bor­der of the United States to be a na­tional emer­gency, cat­a­pult­ing the coun­try into un­cer­tain le­gal and po­lit­i­cal bat­tles as he seeks to ful­fill a cam­paign prom­ise that eluded him for two years.

He made the des­ig­na­tion in an at­tempt to re­di­rect tax­payer money from other ac­counts and use it to erect more than 230 miles of bar­ri­ers along the U.S.-Mex­ico bor­der. But Trump an­tic­i­pates a flurry of le­gal chal­lenges that will even­tu­ally be de­cided by the Supreme Court.

Democrats are try­ing to paint the ac­tion as ev­i­dence of a rogue pres­i­dent who has fi­nally gone too far, and they vowed to stop him.

Trump’s an­nounce­ment capped a fre­netic two-month pe­riod that in­cluded the long­est gov­ern­ment shut­down in U.S. his­tory, at 35 days; the reemer­gence of Democrats as a po­lit­i­cal force; and a Repub­li­can Party caught between tak­ing sig­nals from Trump and buck­ing his un­con­ven­tional im­pulses. It also be­gins a new phase of his pres­i­dency that will test the sep­a­ra­tion of pow­ers, as he side­steps Congress de­spite Repub­li­cans urg­ing re­straint.

“I could do the wall over a longer pe­riod of time. I didn’t need to do this, but I’d rather do it much faster.” Pres­i­dent Trump, on why he de­clared a na­tional emer­gency

Dur­ing a 50-minute, me­an­der­ing Rose Gar­den news con­fer­ence, Trump of­fered lit­tle em­pir­i­cal ev­i­dence to back up his as­ser­tion that there was a cri­sis on the bor­der re­quir­ing an ex­tra­or­di­nary re­sponse. In­stead, he in­voked hy­per­bolic, cam­paign-style rhetoric about law­less­ness that he said only walls could suit­ably ad­dress.

“We’re talk­ing about an in­va­sion of our coun­try with drugs, with hu­man traf­fick­ers, with all types of crim­i­nals and gangs,” he said. He used the word “in­va­sion” seven times.

He later said the emer­gency dec­la­ra­tion wasn’t ur­gent but rather ex­pe­di­ent, as it would help him build a wall more quickly than Congress would al­low.

“I didn’t need to do this, but I’d rather do it much faster,” he said.

Democrats and the Amer­i­can Civil Lib­er­ties Union mapped out the ways they would try to block Trump’s wall. House Ju­di­ciary Com­mit­tee Chair­man Jer­rold Nadler (D-N.Y.) said he would sum­mon White House Coun­sel Pat Cipol­lone to Capi­tol Hill to ex­plain the White House’s ra­tio­nale.

Cal­i­for­nia At­tor­ney Gen­eral Xavier Be­cerra, a Demo­crat, said he planned to work with other states to take le­gal ac­tion against the White House. The ACLU said it was pre­par­ing a law­suit of its own, ar­gu­ing that Trump can­not legally re­di­rect tax­payer money dur­ing an “emer­gency” un­less it’s for mil­i­tary con­struc­tion projects that sup­port the armed forces. Fri­day af­ter­noon, the ad­vo­cacy group Pub­lic Cit­i­zen filed a suit in U.S. Dis­trict Court in Wash­ing­ton, seek­ing to block Trump’s dec­la­ra­tion on be­half of Texas landown­ers and an en­vi­ron­men­tal group.

Democrats and sev­eral Repub­li­cans pre­dicted a two-pronged re­sponse to the dec­la­ra­tion: one, hav­ing Congress vote to re­ject it in the com­ing weeks, and two, su­ing Trump — or at least aid­ing other par­ties that at­tempt to in­ter­vene.

“The pres­i­dent’s ac­tions clearly vi­o­late the Congress’s ex­clu­sive power of the purse, which our Founders en­shrined in the Con­sti­tu­tion,” House Speaker Nancy Pelosi (D-Calif.) and Se­nate Mi­nor­ity Leader Charles E. Schumer (D-N.Y.) said in a state­ment. “The Congress will de­fend our con­sti­tu­tional au­thor­i­ties in the Congress, in the Courts, and in the pub­lic, us­ing ev­ery rem­edy avail­able.”

Most no­tably, Pelosi and Schumer said, “We call upon our Repub­li­can col­leagues to join us to de­fend the Con­sti­tu­tion.”

Repub­li­cans are di­vided over Trump’s dec­la­ra­tion, with many un­nerved by what they see as an ex­ec­u­tive power grab while oth­ers are un­will­ing to chal­lenge the pres­i­dent ahead of 2020 pres­i­den­tial and con­gres­sional elec­tions.

Sen. Thom Til­lis (R-N.C.), who faces a re­elec­tion race next year, sug­gested that it would be hyp­o­crit­i­cal for Repub­li­cans to sup­port the emer­gency dec­la­ra­tion af­ter crit­i­ciz­ing Pres­i­dent Barack Obama for “ex­ec­u­tive over­reach,” and he sug­gested that fu­ture Demo­cratic pres­i­dents might fol­low Trump’s prece­dent.

Til­lis de­scribed a fu­ture “Pres­i­dent Bernie San­ders declar­ing a na­tional emer­gency to im­ple­ment the rad­i­cal Green New Deal” or a “Pres­i­dent Eliz­a­beth War­ren de- clar­ing a na­tional emer­gency to shut down banks and take over the na­tion’s fi­nan­cial in­sti­tu­tions.”

“I don’t be­lieve in sit­u­a­tional prin­ci­ples,” he said.

Other Repub­li­cans lodged an even more straight­for­ward ob­jec­tion: Declar­ing a na­tional emer­gency might prompt Trump to shift funds from other des­per­ately needed projects.

Rep. Mac Thorn­berry (Tex.), the top Repub­li­can on the House Armed Ser­vices Com­mit­tee, warned against tap­ping De­fense Depart­ment and mil­i­tary con­struc­tion ac­counts to build the wall.

“Do­ing so would have detri­men­tal con­se­quences for our troops,” he said in a Thurs­day state­ment. “And it would un­der­cut one of the most sig­nif­i­cant ac­com­plish­ments of the last two years — be­gin­ning to re­pair and re­build our mil­i­tary. I hope that the pres­i­dent will pur­sue other op­tions.”

The is­sue was more than a con­sti­tu­tional dis­cus­sion for Repub­li­cans. Democrats sig­naled that they would pro­ceed with a priv­i­leged res­o­lu­tion of dis­ap­proval that would force GOP law­mak­ers to ei­ther vote for Trump’s wall or op­pose his emer­gency claim — with cer­tain po­lit­i­cal reper­cus­sions.

By Fri­day af­ter­noon, Rep. Joaquin Cas­tro (D-Tex.) said he had gath­ered more than 60 cospon­sors for the res­o­lu­tion.

Such a mea­sure would pass in the Demo­cratic-con­trolled House, and more than enough Repub­li­cans could break ranks to en­sure its Se­nate pas­sage. But Trump is cer­tain to veto the res­o­lu­tion, and Congress prob­a­bly couldn’t muster enough votes to over­ride a veto.

The more se­ri­ous threat to Trump’s move could be lit­i­ga­tion, with nu­mer­ous par­ties ex­plor­ing le­gal chal­lenges — in­clud­ing Demo­cratic House lead­ers who have been ex­am­in­ing var­i­ous op­tions for months.

Sen. John Cornyn (R-Tex.) said Thurs­day that he did not con­sider an emer­gency dec­la­ra­tion to be “a prac­ti­cal so­lu­tion” for Trump be­cause lit­i­ga­tion could keep any po­ten­tial wall fund­ing on hold for months or years while the law­suits re­solve them­selves.

“I thought there were other, bet­ter al­ter­na­tives,” he said.

White House of­fi­cials want to ap­prove projects and re­al­lo­cate money as quickly as pos­si­ble, but no time­line has been given.

Part of their strat­egy is to try to use em­i­nent do­main to seize pri­vate prop­erty along the bor­der, par­tic­u­larly in Texas, where they want to in­stall parts of the bar­rier. This is ex­pected to open an­other round of le­gal chal­lenges from pri­vate landown­ers.

Other parts of the ap­proach are equally un­clear. White House of­fi­cials have not said, for ex­am­ple, how they plan to so­licit bids on the projects or what type of process they will fol­low. Con­gres­sional Democrats and some state lead­ers, mean­while, have vowed to try to stop the work be­fore it can even be­gin.

Trump has long as­serted that the United States is full of rapists, mur­der­ers and other vi­o­lent crim­i­nals who en­ter il­le­gally from Mex­ico, and he has pledged to ad­dress the sit­u­a­tion by build­ing a wall. Gov­ern­ment data, though, shows that at­tempted bor­der cross­ings re­main near 40-year lows and that drug traf­fick­ers pri­mar­ily at­tempt to smug­gle hard nar­cotics through ports of en­try, not through gaps between bor­der bar­ri­ers, as Trump has sug­gested.

The big­gest chal­lenge on the bor­der in re­cent years has been a surge of fam­i­lies seek­ing to cross into the United States and claim asy­lum, over­whelm­ing bor­der agents and U.S. fa­cil­i­ties.

White House of­fi­cials plan to use $8 bil­lion to build new fenc­ing that they be­lieve will block or dis­cour­age a wide range of im­mi­grants.

Of that money, $1.375 bil­lion was ap­proved by Congress on Thurs­day, and it can be used for 55 miles of “pedes­trian fenc­ing” in the Rio Grande Val­ley in Texas.

The White House plans to use $600 mil­lion from the Trea­sury Depart­ment’s for­fei­ture funds ac­count, which con­tains money seized by the fed­eral gov­ern­ment from a range of il­licit ac­tiv­i­ties.

An ad­di­tional $2.5 bil­lion would be redi­rected from a Pen­tagon pro­gram for coun­ter­ing drug ac­tiv­i­ties, and a fi­nal $3.6 bil­lion would be moved from mil­i­tary con­struc­tion ac­counts. It’s that fi­nal pot of money that White House of­fi­cials said re­quired the na­tional emer­gency dec­la­ra­tion, as the White House is gen­er­ally barred from mov­ing money from one ac­count to an­other without con­gres­sional ap­proval.

Trump promised dur­ing the 2016 cam­paign to build a bor­der wall and have Mex­ico fi­nance it. Since be­com­ing pres­i­dent, he has in­sisted in­stead that the money come from U.S. tax­pay­ers.

White House of­fi­cials said that more than 50 na­tional emer­gen­cies have been de­clared since the 1970s, at­tempt­ing to re­but con­cerns that Trump was out­side his au­thor­ity in tak­ing this step.

“This is au­thor­ity given to the pres­i­dent in law al­ready,” said act­ing White House chief of staff Mick Mul­vaney. “It’s not as if he just didn’t get what he wanted so he’s wav­ing a magic wand and tak­ing a bunch of money.”

Pres­i­den­tial schol­ars said Trump’s move on Fri­day, though ex­treme in its rhetoric, will be viewed much dif­fer­ently, even if he at­tempts to use the Na­tional Emer­gen­cies Act of 1976 to but­tress his case. That’s be­cause Trump isn’t re­spond­ing to a cri­sis that’s ev­i­dent to the Amer­i­can peo­ple but is in­stead tak­ing ac­tion af­ter Congress re­jected his fund­ing re­quest for the past two years.

“It shrinks the im­por­tance of Congress even more,” said Dou­glas Brink­ley, a pres­i­den­tial his­to­rian. “It is a wild-eyed im­pe­rial pres­i­dency.”

In his Rose Gar­den re­marks, Trump sug­gested that he had al­ready thought through the le­gal mine­field that his de­ci­sion was likely to tra­verse. He pre­dicted that lower-court judges and the U.S. Court of Ap­peals for the 9th Cir­cuit would prob­a­bly rule against him be­fore the ad­min­is­tra­tion ul­ti­mately pre­vailed.

As part of the na­tional emer­gency dec­la­ra­tion, Trump signed a $333 bil­lion spend­ing bill that funds many gov­ern­ment op­er­a­tions through Septem­ber. This averted a gov­ern­ment shut­down that would have be­gun Sat­ur­day.

JABIN BOTS­FORD/THE WASH­ING­TON POST

At a news con­fer­ence in the White House Rose Gar­den, Pres­i­dent Trump an­nounces his dec­la­ra­tion of a na­tional emer­gency on the south­ern bor­der. Democrats vowed to block the dec­la­ra­tion and stop wall con­struc­tion, and some law­suits have al­ready been filed.

OLIVER CON­TR­ERAS FOR THE WASH­ING­TON POST

Pres­i­dent Trump and first lady Me­la­nia Trump walk to Marine One out­side the White House as they de­part for Palm Beach, Fla. De­tails of his bor­der plan re­main un­clear.

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