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Trump Retains Explosive Wildcard in Battle Over Border Security

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Explosive Wildcard. shutterstock

President Trump’s planned trip Monday to the border city of El Paso, Texas comes days before U.S. government funding is due to lapse once again and as suspense builds over Trump’s vague but persistent threat to declare a national emergency if Congress declines to pay for wall construction along the U.S.-Mexico border.

“The president really does believe that there is a national security crisis and a humanitarian crisis at the border, and he will do something about it,” White House Chief of Staff Mick Mulvaney said Sunday on NBC’s Meet the Press program. “He’s going to do whatever he legally can to secure that border.”

“I do expect the president to take some kind of executive action, a national emergency is certainly part of that … if we [lawmakers] don’t reach a [border security] compromise,” North Carolina Republican Rep. Mark Meadows said on CBS’ Face the Nation program. “This president is going to build a wall one way or another.”

Democrats insist there is still time for a politically divided Congress to forge and pass a spending bill that strengthens America’s southern border.

“Nobody wants a shutdown, nobody wants the president to use some kind of emergency powers,” Montana Democratic Sen. Jon Tester said on Fox News Sunday. “We just need to do our job, and we can do it.”

Trump was resolute at last week’s State of the Union address to Congress.

“Where walls go up, illegal crossings go way down,” the president said. “I’ll get it built.”

So far, no deal has been reached by a bipartisan bicameral conference committee tasked with finding a compromise on border security before U.S. government funding expires on Friday. But Trump holds a wildcard – his authority as commander-in-chief to declare a national emergency and bypass Congress altogether.

“I don’t think anybody questions his legal authority to declare a national emergency,” Republican House Minority Leader Kevin McCarthy of California said late last week.

“That would be a gross abuse of power, in my view,” Maryland Democratic Sen. Chris Van Hollen told VOA. “It’s pretty clear you can’t declare an emergency just because you can’t get your way 100 percent in the Congress. So let’s try and work this out through the normal process.”

In the abstract, the president’s authority to declare a national emergency is not in question.

“It turns out that the federal statute books are actually littered with hundreds of places where a president can declare national emergencies in various contexts,” George Washington University law professor Paul Schiff Berman said, who added that some statutes do allow a president “to move around money within the federal budget to address the emergency.”

But there is a catch: the very concept of an emergency as a sudden and dire situation.

“All of these statutes were written it appears with the idea that every once in a long while, there would be a true crisis—could be a natural disaster, could be a foreign invasion, something like that—where the need to act quickly was so important that the president would need these national emergency powers because there just wouldn’t be enough time for Congress to convene,” Berman said. “None of those [envisioned situations] would apply in a case like building a wall which is going to take many, many years, if it ever happens at all.”

A national emergency declaration from Trump would almost certainly trigger swift lawsuits as well as congressional action to overturn it. (VOA)

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