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Hill GOP support grows for Trump to make emergency declaration

Multiple GOP leadership aides said they expected the GOP conference to be open to the idea of an emergency declaration. | AP Photo/J. Scott Applewhite

President Donald Trump is keeping everyone in suspense as he considers whether to declare a national emergency to build his border wall.

Republican support for an emergency declaration is growing in some corners of the party, as GOP leaders and White House officials view it as a way out of a shutdown fight they’re losing. Others are unsure, viewing it as the kind of end-run around Congress that the Republican Party harshly criticized Barack Obama for doing.

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And many key Republicans are in the dark ahead of Trump’s Oval Office address on Tuesday, as Congress and the White House limp through a government shutdown now in its 18th day. Senate Homeland Security Chairman Ron Johnson (R-Wis.) said he wasn’t sure which way Trump was leaning and that despite chairing a key immigration panel had not yet been read in by the White House: “I have no idea.”

“If there’s one thing that candidate Trump had a mandate on it’s securing the border and building the wall,” Johnson said. “That’s why President Trump is talking about declaring a national emergency. Because he’s not getting the Democrats to really put the money where their mouth is. They all say they want border security, just not that kind.”

Though the president has yet to make a final decision, he is unlikely to declare a national emergency in his Oval Office address Tuesday evening, according to two sources with direct knowledge of the plans.

Some of the president’s advisers argue an emergency declaration of a border crisis — to free up billions of dollars for Trump’s border wall — would allow Republicans to reopen the federal government without looking like they’ve caved to Democrats. Trump allies believe it would send an unmistakable message to the president’s base that he’s dead serious about border security.

It would also allow Trump and Republicans to save face, they note privately. GOP leaders on Capitol Hill know support for the shutdown is slowly eroding inside the party, as more moderate Republicans call for an end to the crisis. And so they’re advising Trump to make the case for executive action over the next few days should he decide to deploy it.

It’s clearly a fallback plan, but Republicans are preparing for its possibility.

“I’m sure he’d rather do it through a meeting, a productive one, between him and [Senate Majority Leader Chuck] Schumer and [Speaker Nancy] Pelosi. I think they both feel that’s maybe not materializing soon,” said Sen. Mike Braun (R-Ind.) in an interview. “If he sees no agreement coming, I think he’ll push the envelope.”

Stephen Miller, the outspoken immigration hawk and senior Trump adviser, is taking a leading role writing Trump’s remarks.

Still, there is internal disagreement in the White House about whether declaring a national emergency is a good idea — and, if Trump chooses to do so, about the appropriate timing and venue for such a declaration.

Several of the president’s outside advisers, including his former campaign chairman Stephen Bannon and former deputy campaign manager David Bossie, are urging him to take the more extreme course.

Others, however, are urging caution, telling the president that a legal challenge to his actions would be almost assured, putting Trump on course for a bare-knuckled fight with House Democrats and a grueling series of court challenges.

A worker adjusts hoses during a hydraulic fracturing operation at a gas well.

The White House counsel’s office has been reviewing the legality of an emergency declaration since last Thursday, according to a source familiar with the process. They’ve been examining three potential avenues that would allow the president to mobilize personnel and tap into funds that are currently available for purposes not involving border security.

But as of Monday night, hours after Trump announced he would be delivering an Oval Office speech the following evening on the “humanitarian and National Security crisis on our Southern border,” the counsel’s office “hadn’t finished their analyses,” the source said. Only two of the three avenues had been fully reviewed and it wasn’t immediately clear whether either was found to be legally sound.

Democrats have already suggested declaring a national emergency to build the wall would be unconstitutional, arguing that Trump has no proof that an emergency actually exists and no authority to move around already-appropriated federal funds without congressional approval. Pelosi and Schumer will follow Trump’s address with their own rebuttal and will be sure to hit that point.

Trump, meanwhile, was scheduled to meet with cable and network anchors on Tuesday for an off-the-record lunch to preview the speech, according to a White House official. And other White House officials have taken to cable networks to frame the wall as an antidote to a “crisis” situation at the border.

Vice President Mike Pence, who will huddle with Hill Republicans Tuesday night to discuss the shutdown and the possibility of Trump taking unilateral action, told NBC’s “Today” that Trump had not made a decision yet on how to proceed. Trump, however, will “explain to the American people that we have a humanitarian and security crisis at our southern border,” he said.

“It is a real crisis,” Pence said. “Tonight he will tell the American people why Congress should act.”

Pence and Homeland Secretary Secretary Kirstjen Nielsen will brief House Republicans Tuesday night. Multiple GOP leadership aides said they expected the GOP conference to be open to the idea.

Trump claims federal workers support him

“I think that if Pence and Nielsen come in and do a hypothetical walk-through to members about how the process would work, and we could re-open the government by the end of the week, even tonight, so that paychecks weren’t affected, I think members would take that,” said a GOP leadership aide. “This emergency declaration could be an out for everybody.”

Senate Majority Leader Mitch McConnell has yet to weigh in. Asked if Trump could or should declare a national emergency, the Kentucky Republican ‬said he’d give a speech on Tuesday afternoon and otherwise declined to comment. Pence and Nielsen will meet with GOP senators on Wednesday.

Congress alone has the power of the purse under the Constitution. But presidents are able to use unobligated military funds during a national emergency. Whether such a crisis exists, of course, is hotly contested, with Democrats noting that there are actually fewer border apprehensions this year than in past decades.

By backing what would be an explosive move, GOP leaders could open themselves up to accusations of hypocrisy. For years, they complained about what they viewed as executive overreach on immigration policy by former President Barack Obama. By supporting an emergency declaration by Trump without proof of an emergency — all to fulfill a campaign promise — Republicans would be greenlighting Trump’s moves to usurp congressional authority.

Trump would almost certainly face an immediate challenge in the courts, with a messy legal battle that could drag out for months if not years.

House Majority Leader Steny Hoyer (D-Md.) ripped Trump during a discussion with reporters Tuesday morning, calling him a “dictator” who is treating the U.S. like an autocratic country where rulers declare “martial law” to impose their will on the people when they can’t get their way.

“A problem exists but not a crisis that would justify him acting unilaterally,” Hoyer said. ““There is no crisis, there is no invasion, there is no clear and present danger.“

Republicans and White House officials who support the idea don’t care. Let the courts deal with it, they say. And Trump wouldn’t be accused of caving, they argue.

On Tuesday morning, Indiana Republican Rep. Susan Brooks said she would back Trump’s decision to declare a national emergency. The moderate-minded lawmaker cited the swelling number of child migrants who have crossed the border.

“I do think that this is a much greater crisis that we’ve seen in the past at the border. So if the president deems that a national emergency, then yes, I would support that,” she said in an interview with radio host Gordon Deal.

Not all GOP lawmakers are sold, however.

Some senior Hill Republicans worry announcing the emergency declaration followed by passage of Democratic spending bills would be viewed as a defeat within the party. Some believe Trump can win a shutdown fight against Democrats if he continues to hold out for $ 5 billion for the wall. Other Republicans said it could be difficult to endorse a process that circumvents Congress.

“I don’t like the sound of that,” Rep. Jim Banks (R-Ind.), a veteran of the war in Afghanistan, told a radio station Tuesday, later adding: “At the end of the day… all of this falls in the lap of Congress.”

Heather Caygle, John Bresnahan, Gabby Orr and Sarah Ferris contributed to this report.

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