Trump Plans to Declare National Emergency to Build Border Wall

Trump Plans National Emergency to Build Border Wall as Senate Passes Spending Bill

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Asylum seekers lined up in January outside the El Chaparral entry point into the United States in Tijuana, Mexico.CreditCreditMark Abramson for The New York Times

WASHINGTON — President 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 83-16 to advance the spending package in anticipation of final passage on Thursday night by the House.

Mr. 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.

Speaker Nancy Pelosi of California said Democrats were “reviewing our options” in responding to Mr. 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 Mr. 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,” Ms. Pelosi said, reminding Mr. Trump that it was the first anniversary of the massacre at Marjory Stoneman Douglas High School in Parkland, Fla. “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 on 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,” Ms. Sanders said, as she announced that Mr. 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 Mr. Trump’s presidency. It provides $ 1.375 billion for 55 miles of steel-post fencing, essentially the same that Mr. 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, Mr. 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 Mr. 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 Senator Lisa Murkowski, Republican of 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.”

Senator Rand Paul, Republican of Kentucky, 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.”

Mr. Trump disregarded objections raised by Mr. McConnell 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 Mr. 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 Mr. 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 Mr. Trump from using funds appropriated for disaster relief to pay for border wall construction.

Mr. 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. Speaker Nancy 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, Mr. Trump asked Ms. 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.”

Mr. 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.

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President Trump will sign the border security compromise to avert a shutdown, but he will also declare a national emergency so he can build his border wall, Senator Mitch McConnell, the majority leader, said.CreditCreditErin Schaff for The New York Times

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.

As lawmakers took up the spending bill on Thursday, Democratic leaders, like their Republican counterparts, urged their rank-and-file to get on board.

“It is incumbent on Congress to come together to responsibly fund our government,” Representative Nita M. Lowey of New York, chairwoman of the House Appropriations Committee, said in a statement released shortly after midnight. “This legislation represents a bipartisan compromise and will keep our government open while funding key priorities.”

Even with Congress’s left and right flanks grumbling, a solid majority of lawmakers has signaled support for the package, with Republicans and Democrats unwilling to court another shutdown less than 48 hours before funding for nine cabinets and multiple federal agencies is set to expire.

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 Representative Henry Cuellar, Democrat of Texas and 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, following a number of highly publicized instances where Democratic lawmakers tried to visit detention centers and were turned away.

Lawmakers were also pulled in by the other six parts of the spending package, which finance a number of agencies, including the Internal Revenue Service, which is in the middle of tax-filing season, and the Commerce Department. Allocations include $ 77 million for addressing the opioid epidemic and funds to address natural disasters, including nearly $ 4 billion to wild-land fire programs and $ 12.6 billion for the Federal Emergency Management Agency’s disaster relief fund.

The package also negates an executive order that Mr. Trump signed to freeze pay for federal civilian workers, and instead extends a 1.9 percent pay increase. Vice President Mike Pence, cabinet officials and other high-level political appointees will also receive raises, about $ 10,000 a year, which were frozen during the shutdown.

Negotiators failed to resolve other matters, including back pay for federal contractors caught in the middle of the shutdown and an extension of the Violence Against Women Act, which expires Friday — although grants under the act are funded in one of the spending bills.

All but one of the 17 House and Senate negotiators signed off on the final package. Representative Tom Graves, Republican of Georgia, refused to sign, saying he was given no time to digest the seven spending bills. But he did not rule out voting for the bill on the floor.

“Maybe the policy is good, maybe it’s not,” Mr. Graves wrote on Twitter. “I’ll work through this ahead of the final vote later today.”

Sheryl Gay Stolberg and Nicholas Fandos contributed reporting.

Follow Peter Baker on Twitter: @peterbakernyt.

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