For the past week, President Donald Trump has been publicly leaning toward the legally questionable option of declaring a state of emergency to fund the construction of his border wall and end the government shutdown, but on Friday the momentum behind Trump bypassing Congress in this manner appeared to be well on its way to stalling out.
One reason for the inertia could be the varying array of arguments being put forth among increasing numbers of the president’s own allies within the Republican congressional caucus, inveighing against Trump’s proposed tactic.
Significant parts of the government shut down at the end of the day on December 21, which means that on Saturday, January 12, this current impasse will become the longest period of time the U.S. federal government has been defunded — with Trump’s demand that Congress fund the border wall he wants to build on the Mexican border being the proximate cause. With Trump’s negotiations with Congress having stalled, the White House and its allies have openly considered bypassing Congress to fund wall construction using the National Emergencies Act.
Before heading to Texas on Thursday, Trump vowed he would pursue such a declaration should negotiations with Congress fail to deliver funds for his wall. “If this doesn’t work out, probably I will do it,” he said. “I would almost say definitely.”
But Trump was decidedly more equivocal on Friday, telling reporters at the White House, “The easy solution is for me to call a national emergency, but I’m not going to do it so fast.”
“What we’re not looking at right now is national emergency,” Trump said , before adding that if congressional Democrats continued to oppose his demand for wall funding, “we’ll start thinking about another alternative.”
But throughout the week, Republican members of Congress have spoken up critically about Trump seeking to circumvent Congress in this manner. Many expressed concerns that the move would be legally questionable, and could end up dragging out the process for a long period of time.
“The president’s got to make a decision within the law, and I’m sure it’ll be subjected to legal challenges,” Sen. Thom Tillis (R-NC) said of Trump declaring a national emergency, according to the Wall Street Journal. “You can’t be in a national emergency forever,” he told The Hill. “For us to totally secure the border, that’s a multiyear proposition.”
“I am opposed to using defense dollars for non-defense purposes,” Rep. Mac Thornberry (R-TX), ranking member on the House’s Armed Services Committee, said in a news briefing on Tuesday according to Stars and Stripes . “To take some of that money and use it for something other than (military construction purposes) will obviously be damaging and I’m not for that. Seems to be that we need to fund border security needs on their own and not be taking it from other accounts.”
Thornberry’s criticism undercut Trump’s main rationale for building the wall — that it is needed to protect Americans.
The number two Republican in the Senate, Texas’ John Cornyn, was skeptical as well. Instead of a solution to end the shutdown, Cornyn told The Hill, “I don’t think that resolves much of anything.”
“I’m confident he could declare a national emergency, but what that means in terms of adding new elements to this, in terms of court hearings and litigation, that may carry this on for weeks and months and years, to me, injecting a new element into this just makes it more complicated,” he told CNN on Monday.
— CNN Politics (@CNNPolitics) January 7, 2019
On Tuesday, Sen. Rob Portman (R-OH) told CNN that he felt declaring a national emergency wasn’t a great idea.
“No. It’s a much wiser idea to negotiate something out, because if it’s done it will be tied up in the courts for a long time, and it would not be successful in achieving the objective. Plus it’s cumbersome,” he said.
“The administration should not act on a claim of dubious constitutional authority,” Sen. Susan Collins (R-ME) told the New York Times on Tuesday. “It should get authorization from Congress before repurposing such a significant sum of money for a border wall.”
“I believe you’re going to find it in the courts almost immediately,” said Sen. Chuck Grassley (R-IA) in a CNBC interview on Friday. “And the courts are going to make a decision…The president is threatening emergency action, a national emergency declaration. I don’t think he should do that. I think it’s a bad precedent. And it contravenes the power of the purse that comes from the elected representatives of the people.”
But one lawmaker who initially expressed skepticism metamorphosed into a fervent advocate by the end of the week.
According to ABC News’ Katherine Faulders, Sen. Lindsey Graham (R-SC) on Tuesday said that an emergency declaration was not his “preferred route.”
“I don’t know legally if you can do that,” he said, later adding on Twitter that he was unsure as to whether the approach would truly work.
President @realdonaldtrump strongly believes he has power to declare a national emergency to build a wall.
Will that approach work?
I don’t know.
— Lindsey Graham (@LindseyGrahamSC) January 10, 2019
By late Thursday, however, he had quickly changed his tune and on Friday afternoon, he began calling for Trump to “declare a national emergency NOW,” and to begin building the wall without congressional approval or appropriations — or even addressing the government shutdown.
Declare a national emergency NOW.
Build a wall NOW.
— Lindsey Graham (@LindseyGrahamSC) January 11, 2019
Nevertheless, Graham was a unique island of assent in a sea of mild, if often unspecified skepticism.
Sen. Lisa Murkowski (R-AK), who regularly voices critical reactions to Trump’s priorities, said, “I don’t think that’s the way we should go,” when asked about the idea.
Sen. Roy Blunt (R-MO) told The Hill that while he thought there were several ways to solve the government shutdown and the fight over Trump’s wall, Trump declaring an emergency “would not have been my initial thought as one of the ways out of this.”
Some were even concerned that the move could backfire by establishing the precedent by which future Democratic presidents could bypass Congress to achieve liberal policy goals.
Sen. Marco Rubio (R-FL) said on CNBC Wednesday that while he thought Trump may have to keep his promise to build a wall, “we have to be careful about endorsing broad uses of executive power.”
“I’m not prepared to endorse that right now,” he said. “If today, the national emergency is border security…tomorrow the national emergency might be climate change.”
Rep. Matt Gaetz (R-FL), a right-wing ally of Trump, expressed concern about the president declaring a national emergency to build the wall. His fear? A Democratic president using the same tool to fulfill liberal priorities.
“I don’t want the next national emergency to be that some Democrat president says we have to build transgender bathrooms in every elementary school in America,” Gaetz told the Wall Street Journal. (There is no need for such a declaration, as every elementary school in America which currently has a bathroom of any kind already has adequate facilities for transgender students and faculty.)
Additionally, on Friday, Politico reported that members of the House Freedom Caucus had added to this chorus of disapproval, offering similar objections about the potential for long delays — and bad precedents that future Democratic presidents could exploit. Per Politico, the caucus’ members wanted the president to “hold out for a deal with Democrats, regardless of how long the partial government shutdown drags on.”
Trump himself, on the campaign trail, promised to not use executive orders to solve problems with immigration or the border, and sharply criticized President Obama for having doing so to achieve policy goals like DACA. During a January 2016 Fox News interview, Trump said :
All I’m saying is I’ll make great deals and we’ll get them done and we don’t to have use executive orders and all the stuff that Obama is using which at some point, I would imagine the courts are going to overrule in one form or another. But we’re not going to be opening our borders or closing our orders based on executive orders. We’re going to do it. We will get along well.
The decision to declare a national emergency, while normally delivered through an executive order, is not executed through the same legal framework as the method Obama used for DACA, but logic dictates that candidate Trump would have taken a similarly dim view of any attempt to resolve such matters through a national emergency declaration.