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Q&A: Can Democrats prevent Trump from using his executive power to build a wall?

Donald Trump
President Trump speaks during a rally in El Paso on Monday.
(Susan Walsh / Associated Press)

If President Trump shuffles money in the federal budget to build a wall at the southern border without Congress’ consent, there are a few ways for Democrats to try to stop him.

Each option comes with difficulties and long odds for both sides.

Trump said Thursday he intends to move forward with a plan to fund his border wall by declaring a national emergency because Congress won’t give him taxpayer funds.

The budget deal reached this week on Capitol Hill provides $1.375 billion for 55 miles of new border fencing, but no wall. That’s significantly less than the $5.7 billion he wanted for a wall.

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Here’s a look at how Democrats might respond if Trump moves to find wall money without congressional approval.

Can Trump even do that? Doesn’t Congress hold the ‘power of the purse’?

Yes, Congress is responsible for deciding how your tax dollars are spent, and it is quite possessive of that power. But there are a few places Trump could get the money without congressional approval. None will be easy or popular.

Trump could pull unspent Department of Defense construction funds meant for family housing or infrastructure on military bases, or take money appropriated to but not yet spent by the Army Corps of Engineers for civil works projects meant to prevent future disasters like flood control or dam restoration. Or he could tap money allocated to help states recover from hurricanes, fires and other natural disasters.

How would that work?

Trump must issue an executive order declaring a national emergency. (No, he cannot just tweet.) It has to say what he’s planning to do and under which statute he plans to act.

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“That’s pretty much it,” said Elizabeth Goitein, a co-director of the Liberty and National Security Program at the Brennan Center for Justice. “He doesn’t really even have to explain his reasons for saying there is an emergency.”

Someone would sue, though, right?

Inevitably.

While some federal judges would defer to the president’s power to declare an emergency, Goitein said, others would rule against him because of the unusual circumstances. Of the more than two dozen emergency declarations currently in effect, most are about economic sanctions against foreign actors or governments. A few in recent years have been domestic, like fighting swine flu. Goitein, an expert on emergency declarations, called the idea of Trump using one to build a wall because Congress won’t give him the money “unprecedented.”

“You would get different rulings in different courts and it would eventually make its way to the Supreme Court,” Goitein said.

A legal fight might actually be helpful to Trump, UC Berkeley political science professor Eric

Schickler said.

“From the president’s standpoint, that’s not necessarily so bad because at least he can say he’s still fighting for it. He’s not conceding,” he said.

Is there anything House Democrats could do?

Democrats have a bit of a secret weapon here, and it could be why Trump seemed at one point to cool on the idea of a national emergency. Federal law gives Congress the power to rescind a presidential emergency declaration by passing a joint resolution.

And a joint resolution is privileged, meaning that if it passes the Democratic-controlled House, the Republican-controlled Senate is obligated to vote on it within 18 days.

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“It can’t be filibustered. [Senate Majority Leader] Mitch McConnell cannot say he’s not bringing it to the floor. So it’s a very powerful political weapon that Congress has,” Goitein said.

The GOP would have to publicly wrestle with questions of separation of powers, executive overreach and repurposing military funds for a widely unpopular border wall.

There is a strong chance many Republican senators would join Democrats in voting to block Trump because they are leery about the precedent set by using a emergency declaration to deal with immigration, and what a future Democratic president might do with such power. Could the same type of declaration, for example, be used to divert funds to combat climate change?

Of course, Trump could veto the resolution. And it would take two-thirds of Congress to override the veto, a high hurdle.

Does the president have to issue an emergency declaration to move money around?

Not necessarily, but it would be harder to get the amount of money he says he needs.

The president could repurpose some of what Congress allocates, especially if a particular appropriation is vaguely worded or overly broad. The administration is currently scouring the budget for that kind of money.

But again, Congress is rather possessive of its role in appropriating money, and it doesn’t leave a lot just floating around at federal agencies.

“Congress isn’t really in the habit of giving that kind of discretion,”

Schickler said. “I have trouble imagining that it’s enough to fill that gap.”

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If he oversteps what he can legally move, even by a small amount, expect Congress to challenge him in court for violating the separation of powers

Anything else Congress could do?

Yes. Representatives and senators are also considering legislation to block Trump from accessing the most likely available pots of money. But this move is both more time intensive and less likely to succeed.

Rep. John Garamendi (D-Walnut Grove), who first drew attention to the fact that Trump was considering diverting billions of dollars in funds designated for Corps of Engineers projects in California and Puerto Rico to fund his wall, is leading the effort in the House.

His bill would eliminate a provision in a 32-year-old law that allows the secretary of the Army to unilaterally redirect funds from the Army’s civil works program if war has been declared or the president declares a national emergency. The provision has never been used, Garamendi said.

“Communities across America and particularly in California desperately need that money to protect themselves,” Garamendi said. “No president has thought it wise to interfere with those ongoing civil works programs, nor have they thought it necessary.”

In the Senate, several Democrats, including California Sens. Dianne Feinstein and Kamala Harris, are supporting legislation to specifically prohibit using military construction funds or Corps of Engineers disaster funds to build a barrier of any kind or acquire land for a barrier at the southern border, even when the president declares a national emergency.

But without bipartisan support, neither piece of legislation is likely to move through the Republican-controlled Senate.

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