By Peter Baker and Emily Cochrane
WASHINGTON – President Donald Trump plans to declare a national emergency so he can bypass Congress and build his long-promised wall along the border even as he signs a spending bill that does not fund it, the White House said Thursday.
The announcement of his decision came just minutes before the Senate voted 82-16 to advance the spending package in anticipation of final passage Thursday night by the House.
Trump’s decision to sign it effectively ends a two-month war of attrition between the president and Congress that closed much of the federal government for 35 days and left it facing a second shutdown as early as Friday, but it could instigate a new constitutional clash over who controls the federal purse.
“President Trump will sign the government funding bill, and as he has stated before, he will also take other executive action – including a national emergency – to ensure we stop the national security and humanitarian crisis at the border,” said Sarah Huckabee Sanders, the White House press secretary.
House Speaker Nancy Pelosi of California said Democrats were “reviewing our options” in responding to Trump’s anticipated declaration and did not rule out a legal challenge.
“The president is doing an end run around Congress,” she said.
She also raised the possibility that Trump was setting a precedent for Democratic presidents to come, precisely what Republicans fear.
“You want to talk about a national emergency, let’s talk about today,” Pelosi said, reminding Trump that it was the anniversary of the massacre at Marjory Stoneman Douglas High School in Parkland, Florida. “That’s a national emergency. Why don’t you declare that emergency, Mr. President? I wish you would.”
The spending legislation includes the seven remaining bills to keep the remainder of the government open through the end of September. House and Senate negotiators unveiled the 1,159-page bill Wednesday just before midnight, leaving little time for lawmakers to actually digest its contents.
“The president is once again delivering on his promise to build the wall, protect the border, and secure our great country,” Sanders said, as she announced Trump would sign it.
The border security compromise, tucked into the $49 billion portion of the bill that funds the Department of Homeland Security, is perhaps the most stinging legislative defeat of Trump’s presidency. It provides $1.375 billion for 55 miles of steel-post fencing, essentially the same that Trump rejected in December, triggering the shutdown and far from the $5.7 billion he demanded for more than 200 miles of steel or concrete wall.
In opting to declare a national emergency, Trump would seek to access funds for the wall that Congress had not explicitly authorized for the purpose, a provocative move that would test the bounds of presidential authority in a time of divided government. Legal experts have said Trump has a plausible case that he can take such action under current law, but it would almost surely prompt a court challenge from critics arguing that he is usurping two centuries of congressional control over spending.
And some Republicans were clearly nervous about his course of action.
“I don’t think this is a matter that should be declared a national emergency,” said Sen. Lisa Murkowski, R-Alaska. “We as legislators are trying to address the president’s priority. What we’re voting on now is perhaps an imperfect solution, but it’s one we could get consensus on.”
Sen. Rand Paul, R-Ky., said, “We have a government that has a constitution that has a division of power, and revenue raising and spending power was given to Congress.”
Trump disregarded objections raised by Sen. Mitch McConnell, R-Ky., and other Republicans who balked at what they deemed presidential overreach. Conservative lawmakers and commentators said that such a move would set a precedent for a liberal president to claim the same power to take action on issues like climate change or gun control without congressional consent.
But Trump ultimately could not see any other way out of his standoff with congressional Democrats over the border wall without shutting down the government again. The first government shutdown prompted by the wall fight deprived 800,000 employees of their paychecks, sapped the president’s standing in the polls and ended only when Trump gave up last month without getting a penny of the $5.7 billion he had demanded.
Democrats immediately prepared to advance legislation that would curtail the president’s abilities to use certain funds after a national emergency declaration.
A group of Democratic senators – including Elizabeth Warren of Massachusetts, Kamala Harris of California and Kirsten Gillibrand of New York, all aspiring presidential nominees – collaborated on a measure to prevent Trump from using funds appropriated for disaster relief to pay for border wall construction.
Trump made the wall his signature promise on the 2016 presidential campaign trail, where he was cheered by supporters chanting, “Build the wall,” only to be frustrated that he was unable to do so during his first two years in office, when Republicans controlled both houses of Congress.
In waging a shutdown battle over the barrier, he has made it the nearly singular focus of his presidency in his third year in office. But Democrats, who took control of the House in January, have made blocking it just as high of a priority, leaving the two sides at a stalemate.
Negotiations since late December ultimately went nowhere. Pelosi, who led Democrats to power in the House, went beyond simply criticizing the wall as unwise or ineffective by declaring it “immoral,” drawing a hard line even though many Democrats have voted for fencing along parts of the border in the past.
At one point during the shutdown, Trump asked Pelosi if she would be willing to support the wall in 30 days if he agreed to reopen the government. When she said no, he got up and walked out of the room with a sharp “bye-bye,” then posted a message on Twitter declaring talks a “waste of time.”
Trump’s national emergency declaration could provoke a constitutional clash between the president and Congress. Under Article I of the Constitution, Congress has the power to appropriate funds. “No money shall be drawn from the Treasury, but in consequence of appropriations made by law,” it says.
But Congress has passed laws in the past providing presidents with authority in national emergencies, laws that remain on the books. Scholars pointed to two that could be used by the Trump administration to justify a presidential expenditure for his border wall without explicit legislative approval.
One permits the secretary of the Army to direct troops and other resources to help construct projects “that are essential to the national defense.” The other law authorizes the secretary of defense in an emergency to begin military construction projects “not otherwise authorized by law” but needed to support the armed forces.
Democrats or other critics of the president will almost surely file legal challenges to his move, which could ultimately lead to a confrontation at the Supreme Court. The court is led by a five-member conservative majority, but it has shown skepticism of presidential excesses in recent years, reining in both President George W. Bush and President Barack Obama when the justices concluded they had overstepped their authority.
The Homeland Security section of the measure allows for 55 miles of new steel-post fencing, but prohibits construction in certain areas along the Rio Grande Valley. More than $560 million is allocated for drug inspection at ports of entry, as well as money for 600 more Customs and Border Protection officers and 75 immigration officers.
It includes a provision, pushed by Rep. Henry Cuellar, D-Texas, the only negotiator from a border district, granting communities and towns on the border a period of time to weigh in on the location and design of the fencing. The White House finds that provision objectionable.
The bill also prohibits funds from being used to keep lawmakers from visiting and inspecting Homeland Security detention centers, after a number of highly publicized instances where Democratic lawmakers tried to visit detention centers and were turned away.