WASHINGTON — Republicans and Democrats are unsure about whether President Donald Trump even has the authority to use a national-emergency declaration to start construction on a wall along the United States border with Mexico, a move Trump has been mulling as the partial government shutdown continues.
Trump has repeatedly floated the idea of using a national-emergency declaration to go around Congress and add more miles of physical barriers along the border in the event he cannot reach a deal with Democrats to reopen the government. He reiterated his point on Wednesday while entering the US Capitol building to meet with Senate Republicans, telling reporters he has the “absolute right.”
But many members of Congress are not sure — including Republicans looking for an out to what is becoming an increasingly toxic political situation.
Connecticut Sen. Richard Blumenthal, a Democrat, told INSIDER that an emergency declaration would no doubt face challenges in the courts and “would be so flimsy that it would be like building his supposed wall on sand without a foundation.”
“A declaration of national emergency would be absolutely repugnant and abhorrent to our constitutional principles,” Blumenthal said. “It would lack any basis in fact or the law and would be struck down by the courts.”
“There is a humanitarian crisis at the border in some of the detention facilities and some of the threats to health and safety for asylum seekers and particularly children,” he added. “But there is no crisis in terrorists coming across the border. The numbers that have been given have been totally fabricated out of someone’s imagination, and if the president bases a declaration of emergency on the supposed terrorist threat, it will fail completely to withstand any judicial challenges.”
Blumenthal’s Connecticut colleague, Democratic Sen. Chris Murphy, said a national-emergency declaration would be “very dangerous” and an “end around on the political process” during a speech on the Senate floor Wednesday.
“And I guess I’m talking to my Republican colleagues here. I get it that I often have some of the sharpest words for this president,” Murphy said. “But I hope that we can come together on the idea that declaring a national emergency because you can’t get what you want through the political process is a really bad precedent to set.”
Republicans are unsure if Trump can use the broad powers of the presidency to build a wall without congressional approval
Republicans have mostly stood by Trump during the shutdown fight as it heads toward yet another week, during which more than 800,000 federal workers are furloughed — meaning they do not show up to work or receive pay — or working without pay (though those working without pay are owed back pay when the government reopens). But on the issue of a national-emergency declaration, Republicans have been all over the place with their thoughts.
Sen. Ted Cruz, who said congressional Democrats are acting “unreasonable” for not allowing funding to build the wall through the appropriations process, told INSIDER he would have to examine the White House’s justifications for declaring a national emergency before making a judgment.
“I want to wait and see what the president actually does before assessing the merits of it,” Cruz said. “I am a constitutionalist. I’ve long argued that any president, Republican or Democrat, should be bound by the Constitution and federal law. And so I want to wait and see what the president actually does, and the legal authorities cited for it, and assess it on the merits at the time.”
Texas Rep. Mac Thornberry, now the ranking member of the House Armed Services Committee, told reporters in an off-camera briefing Tuesday he opposed diverting military funds for the wall.
“In short, I am opposed to using defense dollars for nondefense purposes.” he said. “Seems to me we ought to fund border security needs on their own and not be taking it from other accounts.”
Thornberry added that he believes a new law would be required to stop an impromptu wall construction without congressional approval.
“Obviously, Congress has oversight responsibilities for whatever action the executive branch takes,” Thornberry said. “But as far as can you stop it from happening, my impression is that you would have to pass a new law.”
Sen. Lindsey Graham, who on Wednesday took over the gavel of the Senate Judiciary Committee, told reporters an emergency declaration is “not my preferred route,” adding, “I don’t know legally if you can do that.”