The idea of President Trump declaring a national emergency in order to build his southern border wall is back on the table at the White House — but it is a divisive suggestion, even among his own advisers.
Hard-liners, including senior adviser Stephen Miller and, reportedly, trade adviser Peter Navarro, are among those advocating for such a declaration. But others, including the president’s son-in-law and senior adviser Jared Kushner, are much more ambivalent.
{mosads}Kushner acknowledges that the president has the power to make such a declaration, but he is urging that the focus should remain on a legislative solution.
The discussion has been given new urgency after Trump suffered a serious defeat on the government shutdown, capitulating without any funding for the wall after 35 days.
Instead, the president agreed to a short-term spending measure funding the government for three weeks.
Stung when some commentators said he had caved, Trump hinted at a declaration of national emergency on Twitter, writing on Friday that there was “the understanding that in 21 days, if no deal is done, it’s off to the races!”
One senior White House official insisted to The Hill that when it comes to a declaration of national emergency “nothing has changed … [Trump] knows he can use it if he wants.”
Meanwhile, White House press secretary Sarah Huckabee Sanders said on Monday that “Democrats have signaled to us that they are willing to actually get serious” on negotiations over border security.
{mosads}But Speaker Nancy Pelosi (D-Calif.), who vanquished Trump in the shutdown battle, has little political incentive now to offer him border wall funding.
After Trump caved on the shutdown last Friday, Pelosi told reporters, “Have I not been clear on the wall? I’ve been very clear on the wall.”
Prior to that, she had called the idea of a border wall “an immorality.”
That leaves Trump in a predicament.
The chances of obtaining wall funding from Congress seem questionable at best. The president told The Wall Street Journal that he thought the chances of a deal being done that he would deem satisfactory were “less than 50-50” in an interview published Sunday.
If that is true, an emergency declaration seems like the only way Trump can get the wall that he promised at almost every stop during his 2016 campaign.
Earlier this month, Trump’s former chief strategist Stephen Bannon told The Hill, “I don’t think he has any alternative except to declare a national emergency. The Democrats have no intention, ever, of giving him a penny for the wall.”
At that time, Bannon also said, “if you do not have a wall fully under construction, you are not going to get a second term.”
But there are obvious drawbacks to a national emergency declaration.
The first is that any such declaration would face an immediate court challenge. 2020 Democratic presidential candidate Sen. Kamala Harris (Calif.), among others, has promised as much.
The second problem is that conservatives inside and outside Congress worry about the precedent that would be set by Trump using emergency powers to circumvent the legislature. They fret about how a future Democratic president could use the same powers for different ends.
Sen. Marco Rubio (R-Fla.) called a declaration of national emergency a “terrible idea” in an interview that aired on NBC’s “Meet the Press” on Sunday.
Sen. Roy Blunt (R-Mo.) on “Fox News Sunday” called such a declaration a “bad precedent,” arguing “there might be a future president that I don’t agree with that thinks something else is an emergency.”
In one example of the depth of ambivalence around the issue, one former Trump White House official told The Hill that the ability of such a declaration to withstand a court challenge was “murky at best.” But the same source acknowledged it could also be “the logical choice in some ways if you want to take the issue off the table and avoid these unwinnable budget skirmishes.”
Such comments hint at yet another division.
Some who favor the emergency declaration see it as a gambit to get out of the current predicament, even if the wall is not ultimately built.
These people admit that the push to build the wall would get tied up in court for a long time, postponing construction, and the administration might ultimately lose the legal fight.
But, they say, even if that happened, the president could simply lash out at “liberal judges” and reassure his base that he had made every effort to get the wall.
Others, including Kushner, see that idea as too clever by half. They want to up the political pressure, arguing they might still get some form of legislative victory that would expedite wall construction.
“I think the focus needs to be on actually getting the wall, versus making it appear that you are trying to get the wall,” said another former Trump administration official.
On Monday, Trump’s State of the Union address was set for Feb. 5. The stopgap spending measure runs out on Feb. 15.
A decision, one way or another, will have to be made soon.
The Memo is a reported column by Niall Stanage, primarily focused on Donald Trump’s presidency.