WH to prepare defense for national emergency

As President Donald Trump visited the US-Mexico border near McAllen, Texas, sources tell CNN that White House lawyers have begun laying the groundwork for the legal defense of a national emergency declaration on the southern border.

Posted: Jan 11, 2019 2:16 PM
Updated: Jan 11, 2019 2:27 PM

As President Donald Trump weighs declaring a national emergency to secure border wall funds, congressional Republicans have been split this week on whether the President should use such executive power.

Some senior Republican members have cautioned against declaring a national emergency to get funds for the border wall he's not getting from Congress.

"I think the President should not do it," Sen. Chuck Grassley, an Iowa Republican and the most senior GOP member of the chamber, told CNN on Friday. "I think as a member of Congress I ought to be very selfish about the constitutional powers that we have to appropriate money. I think it might be a bad precedent."

He added, "I'm not saying he doesn't have the power but the most important thing here is he might be letting the Democrats off the hook."

The President had pushed for nearly $6 billion in funding for his border wall, while congressional Democrats have agreed to roughly $1 billion in border security -- but without any new funding for the wall. Both sides have so far refused to budge, leading Trump to toy with the possibility of declaring a national emergency as the partial government shutdown continues.

Rep. Mark Meadows, a close conservative ally of the President, argued it may be necessary to declare a national emergency due to the impasse between congressional Democrats and the White House.

"Democrats continue to refuse to negotiate in good faith or appropriate any money for border barriers," Meadows tweeted Friday morning. "If they won't compromise, POTUS should use asset forfeiture money or other discretionary fees to start construction. If not, he should declare a national emergency. It's time."

The National Emergencies Act of 1974 lays out how a president can activate special powers during a crisis. Trump has said his lawyers have advised him he's within his rights to take the step. Congress, however, can undo a state of emergency declaration, though it would likely require a veto-proof majority.

GOP Sen. Roger Wicker of Mississippi told CNN on Wednesday that declaring a national emergency "would be a mistake" and that members have communicated that Trump in a number of ways.

"Frankly, I'm not crazy about going down that path," Sen. John Thune of South Dakota, the second-ranked Republican in the chamber, told CNN Thursday morning. "Inevitably, I suspect it probably gets challenged in court."

A key ally to the President, Sen. Lindsey Graham of South Carolina, called on Trump to use emergency powers to fund the border wall's construction.

But even as he supports the President's push to invoke national emergency powers, Graham acknowledged to reporters on Thursday that "you're going to get challenged in court for sure as to whether or not this fits the statutory definition of an emergency.

Sen. John Cornyn told CNN on Monday that declaring a national emergency would make the situation "more complicated," and that court hearings and litigation "could carry this on for weeks and months and years."

Other GOP lawmakers are concerned over the possibility that the President might pull from military funds if he were to declare a national emergency. Under US law, Trump could use funds "that have not been obligated" within the Department of Defense's budget for a national emergency.

Rep. Mac Thornberry of Texas, the top Republican on the House Armed Services Committee, made it clear Tuesday that he feels border security should be a responsibility of the Department of Homeland Security, not the Pentagon.

When asked if he thinks the GOP conference would back a national emergency declaration, House Republican Whip Steve Scalise told reporters Thursday that Republicans would like to see the border wall issue resolved legislatively rather than through emergency powers.

"But at the end of the day, we need to secure our border," he added.

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