The White House said Thursday that President Trump will sign a must-pass government spending bill even though it lacks border wall funding and then declare a national emergency to pull money for wall construction from other parts of the federal budget.
The declaration, which would involve a vast expansion of executive power, is certain to face court challenges and could provoke a showdown with Congress. Even some Republican loyalists had cautioned Trump against overstepping his authority, wary of letting the White House circumvent lawmakers’ spending authority.
“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,” White House Press Secretary Sarah Huckabee Sanders said. “The president is once again delivering on his promise to build the wall, protect the border and secure our great country.”
Senate Minority Leader Charles E. Schumer (D-N.Y.) said Democrats would oppose any emergency executive action.
“Declaring a national emergency would be a lawless act, a gross abuse of the power of the presidency and a desperate attempt to distract from the fact that President Trump broke his core promise to have Mexico pay for his wall,” Schumer said in a joint statement with House Speaker Nancy Pelosi (D-San Francisco).
The president’s decision, first announced by Senate Majority Leader Mitch McConnell (R-Ky.), cleared the way for the Senate to vote on the spending bill, which had to be passed by midnight Friday to avert another government shutdown. Many senators were reluctant to vote until Trump clearly stated his intention to sign the bill.
Shortly after Trump’s announcement, the Senate overwhelmingly passed the bill, 83 to 16. The House followed later, approving it 300 to 128.
The vast majority of Democrats voted yes. But several of the party’s 2020 presidential contenders voted against it, including Elizabeth Warren of Massachusetts, Kirsten Gillibrand of New York, Kamala Harris of California and Cory Booker of New Jersey. They joined several conservatives in opposition, creating a stark contrast between the presidential contenders and other Democrats.
Democratic Sen. Amy Klobuchar of Minnesota and independent Sen. Bernie Sanders of Vermont, who has not declared his candidacy, supported the measure.
The bipartisan deal will fund a large chunk of the federal government and provide $1.375 billion for border barriers, but nothing for a wall, which was one of Trump’s main campaign promises in 2016. Back then he promised Mexico would pay for it.
National emergency declarations are usually limited to sanctioning foreign threats or dealing with a domestic crisis, like combating swine flu. Experts have called it unprecedented for a president to issue such a declaration to get funding for a project Congress has explicitly refused to fund.
Legal advocacy group Public Citizen promised to sue "on behalf of landowners and others in Texas likely to be affected by such an illegal maneuver."
Either chamber of Congress can also force a vote on rescinding the president’s order, a move that could put Republicans in a tough position.
Pelosi called the emergency declaration “an end run around Congress.” Some Democrats have floated the idea of a legal challenge, arguing that the president is usurping Congress’ power to appropriate money. Pelosi wouldn’t commit to that Thursday.
“We will review our options, and I’m not prepared to give any preference” to any single one, she said. "Republicans should have some dismay about the door they are opening."
The White House said it was prepared for a legal fight. "We're very prepared, but there shouldn't be” legal challenges, Press Secretary Sanders said. “The president's doing his job. Congress should do theirs."
While the idea of a declaration had been circulating for weeks, most Republican lawmakers said they did not receive advance warning and didn’t know where Trump would find the funding. “He didn’t tell me that,” said Sen. Richard C. Shelby (R-Ala.), who spoke with Trump shortly before McConnell made the announcement.
Some Republicans have discouraged Trump from declaring a national emergency, worried that a future Democratic president might use the same strategy to get funding for a liberal priority, such as climate change.
“We have a crisis at our southern border, but no crisis justifies violating the Constitution,” said Sen. Marco Rubio (R-Fla.). “A future president may use this exact same tactic to impose the Green New Deal. I will wait to see what statutory or constitutional power the president relies on to justify such a declaration before making any definitive statement. But I am skeptical it will be something I can support.”
Other Senate Republicans praised the idea after the White House announcement.
“I’ve said all along that I thought what we did [in the bill] was step one, and he had statutory powers” to make the declaration, said Shelby. “The president was positive” about the spending bill, he said. “He knows this is a year at a time, a step at a time.”
Republicans hope that public backing for border security will buoy support for the emergency declaration.
"Democrats’ refusal to negotiate has rendered Congress inept at doing its job to protect Americans," Rep. Mark Meadows (R-N.C.), chairman of the conservative House Freedom Caucus, wrote on Twitter. "At this point POTUS is absolutely right to use constitutional executive action authority to build the wall and secure our border. This is a national emergency. I fully support him."
Patrick Shanahan, the acting Defense secretary, said recently that a national emergency is not “unique and unprecedented.”
“The language is pretty simple,” Shanahan said. “It basically says, to enhance the capability of the military, military construction funds can be utilized.”
A person with knowledge of the White House’s thinking said it has not yet been decided how much money Trump will attempt to pull for the wall using executive authority.
The person said officials have identified as much as $10 billion that they believe they can legally tap from sources including the Department of Defense, the Department of Homeland Security and the Army Corps of Engineers. This is money that has been appropriated by Congress but not used, possibly because a project has been canceled or not completed.
The person said that attorneys from multiple agencies have signed off on a declaration and that Pat Cipollone, White House counsel, briefed senators Wednesday on Capitol Hill.
A House Armed Services Committee aide who was not authorized to speak publicly and requested anonymity recently told The Times that, by the committee’s analysis, the most likely place the administration would go is military construction funding that is not yet obligated, and potentially a small pot of money for countering drug smuggling. Because much of the military construction funding is for five years, “there’s a big central pool of money, and he could grab for that.”
The president can also “de-obligate,” or essentially cancel, any military construction projects that have not yet begun, the aide said.
Going back as far as 2013, there’s about $13 billion left in military construction money, the aide said, with $10 billion for the 2019 fiscal year. All told, were the president to cancel all potential military construction projects — a move the aide emphasized was “not realistic” — he could get $23 billion toward his wall.
Trump got no wall funding from Congress. The more-than-1,000-page spending bill passed Thursday provides $1.375 billion for barriers at the southern border, but not a wall. That’s less than the $1.6 billion senators approved last year, or the $5.7 billion the president demanded in December.
The bill also states that the Department of Homeland Security cannot build new barriers in certain parks or nature reserves and must consult with affected cities about the design before construction can begin.
The bill, which was negotiated in a bipartisan House and Senate conference, funds 200 border control agents hired since October, but funds no other new agents this year. The bill also allows for hiring new immigration judges and sets new standards for how immigrants should be cared for while they are detained, such as providing some medical care and setting limits on the temperature in facilities.
It includes a 1.9% pay increase for federal employees retroactive to Jan. 1. Trump canceled the pay increase late last year, saying the country couldn’t afford it.
Not included is an extension of the Violence Against Women Act, which provides funding and resources to emergency shelters for abused women and men and will expire at midnight Friday. Nor is there supplemental disaster aid for states such as California and Florida that are recovering from major hurricane, flood and fire damage last year.
Democrats gave up their push to place a cap on the number of immigration arrests that U.S. Immigration and Customs Enforcement, or ICE, could make in the interior of the country by limiting the number of beds available for them in detention facilities.
Times staff writers Molly O’Toole and Noah Bierman contributed to this report.