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Lawmakers scramble to break impasse as Trump threatens national emergency

President Donald Trump on Thursday gave the strongest signal yet that he will declare a national emergency in an effort to secure billions of dollars for a border wall, as negotiations on Capitol Hill to reopen the federal government continue to flounder.

The possible move by Trump would almost certainly trigger an immediate response from House Democratic leaders, who could pursue both congressional and legal avenues to try to halt such unprecedented action. And a small group of Senate Republicans are racing to head off the decision, hoping they can craft a procedural framework that would allow the government to reopen and then immediately turn to an immigration debate.

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But an emergency declaration by Trump could also end the partial government shutdown if congressional leaders agree to reopen shuttered agencies and let the border wall drama play out in the courts.

“I have the absolute right to declare a national emergency,” Trump told reporters outside the White House on his way to McAllen, Texas, adding that his lawyers advised him that he could. “If this doesn’t work out…I would almost say definitely.”

Vice President Mike Pence also seemed to close off the last-minute move by Sen. Lindsey Graham (R-S.C.) and other GOP senators to come up with an agreement to end the shutdown, showing how hard it is to get the White House on the same page as other Republicans.

Graham and a small group of Senate GOP colleagues are pitching a potential trade — Democrats agree to billions of dollars in funding for Trump’s border wall in exchange for temporary protections for immigrants protected under the Deferred Action for Childhood Arrivals and Temporary Protected Status.

While Democrats are far from agreeing to the proposal, Pence signaled Trump wouldn’t go along with it either.

“I think the president feels that we’re waiting to hear from the Supreme Court about DACA,” Pence told reporters in the Capitol on Thursday afternoon. “We’re confident the Supreme Court will find DACA to have been unconstitutional. And at that time, [Trump] believes there will be an opportunity for us not only to address the issue affecting the Dreamers, but also a broader range of immigration issues.”

Pence reiterated that there must be money for Trump’s wall project in an agreement to fund the government.

“No wall, no deal,” Pence declared.

Trump and Pence’s comments come as negotiations on Capitol Hill remain at a near standstill with the shutdown nearing its fourth week – which would make it the longest ever – and 800,000 federal workers on Friday due to miss their first paycheck since the stalemate began. And some lawmakers now believe it is the only way to exit what has become an intractable conflict.

“I could see it coming to that. I don’t think it’s legal. I think it will be challenged in court,” said Sen. Joe Manchin (D-W.Va.). “But it might be the only way out.”

Speaker Nancy Pelosi (D-Calif.) on Thursday wouldn’t say how Democrats would respond if Trump did declare a national emergency. But House Democrats have already started to examine what options they have, both in the courts and on Capitol Hill, according to multiple sources.

“If and when the president does that you’ll find out how we would react,” Pelosi told reporters Thursday. “But I’m not going to that place now.”

If Trump did order the emergency declaration, House Democrats would wait to see what the Senate response is in terms of reopening the government. Senate Majority Leader Mitch McConnell (R-Ky.) has repeatedly stated he will only bring up bills that have the support of the president.

The House passed two bills last week to end the shutdown — one that would fund all shuttered agencies except for the Department of Homeland Security through the end of the fiscal year and another bill to fund DHS until Feb. 8. The House on Wednesday began passing a series of piecemeal bills to fund the government, starting with legislation to reopen the IRS and other key portions of the federal government.

McConnell objected on Thursday to another Democratic effort to bring those bills up for a vote.

“It’s been perfectly clear that the only way to produce this result is for the president, the speaker of the House and the minority leader to agree,” McConnell said. He then asked Democrats whether they will shut down all Senate business while the government is shuttered as Democrats prepared to filibuster a foreign policy bill over the funding lapse.

McConnell met with several Senate Republicans who are hoping to reopen the government and bring up the president’s border wall request in the Senate Appropriations Committee immediately afterward. Such a move will be difficult to pull off, but is the first such movement outside of the Trump-Pelosi-Schumer talks in weeks.

“How about just going back to the way the place works rather than reinventing the wheel?” said Graham, who is close to Trump.

If that fails, lawmakers fear Trump will turn to the emergency declaration.

Multiple House committees could have jurisdiction over the legality of Trump’s emergency declaration, including the Appropriations, Armed Services, Transportation and Judiciary panels and staffers have already started looking into the issue, according to several Democratic sources.

Pelosi said the emergency declaration was just another way for the president to distract from mounting legal troubles related to the special counsel’s Russia investigation and other controversies enveloping the administration.

“I don’t think he really wants a solution. I think he wants the distraction that this is from his other problems,” Pelosi said. “I think he’s going to have to answer to his own party in usurping that much power.”

Indeed, Republicans are also uneasy about the possibility that Trump declares a national emergency, a move many of them consider a huge executive branch overreach and something they frequently criticized former President Barack Obama for.

John Cornyn

There is speculation in both the House and Senate that the administration may not use military construction funding, as was recently floated, but instead rely on federal dollars approved by Congress for water resource development projects.

That could lead to fewer objections from Republicans, many of whom don’t like the idea of Trump declaring an emergency for the border wall, much less using military funds to do so. But not every Republican is on board.

“I would question the president’s ability to do that. He probably does have [authority], but I would question the wisdom of doing that,” said Rep. Mike Simpson (R-Idaho), who is the ranking Republican on the spending panel that oversees Army Corps funding.

Trump’s demands for $ 5.7 billion for a barrier along the southern border thrust the government into a partial government shutdown now in its 20th day and is on the verge of becoming the longest in U.S. history. With Democrats refusing to give in to his demands, Trump has increasingly floated the idea that he may declare a national emergency to secure the wall funds and deliver on one of his earliest campaign promises.

Some critics and legal experts, however, have questioned whether Trump has the authority to use such a declaration to build his wall. And Trump’s latest comments come a day after negotiations between Democratic leaders and the White House dramatically fell apart.

Top Republican and Democratic leaders briefly met with Trump at the White House on Wednesday afternoon to restart discussions on legislation to reopen the government. But Trump abruptly ended the meeting after Pelosi said that she would not give in on border funds in the foreseeable future, storming out and telling the assembled group “bye-bye” according to sources in the room.

“The problem is, there’s no pressure yet,” Simpson said. “We’re getting a lot of phone calls from federal employees who are worried, but nobody’s issued a paycheck yet. That’s going to happen, and then I think the pressure is going to build.”

Sarah Ferris and John Bresnahan contributed to this report.

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