Congress negotiates...

White House preps emergency wall plan while Congress negotiates

Congress has until Feb. 15 to discuss a border security deal, but the White House is already finalizing its plan B — declaring a national emergency.

By NANCY COOK

The White House is finalizing details of a potential national emergency declaration to secure President Donald Trump’s border wall, even as lawmakers are trying to broker an immigration deal that could avert another shutdown in just over two weeks.

Trump met with his budget chief, acting chief of staff Mick Mulvaney, Jared Kushner and other top officials, including White House lawyers, on Tuesday to walk through the logistics of such a move. And White House aides have been quietly meeting with outside conservative political groups to build support for the president to take such an action. Those talking points, which emphasize Trump’s legal authority, have begun to show up in such conservative media outlets as Breitbart News.

The behind-the-scenes maneuvers indicate that the administration wants to be poised to quickly declare a national emergency, should Trump choose to do so, by the time Congress hits its Feb. 15 deadline to strike a deal before government funding again runs out. And it signals that White House officials may not have much faith in congressional Republicans to secure the funding in the coming weeks that Trump seeks to build a wall along the U.S.-Mexico border. Trump himself has said the odds of a congressional deal are “less than 50-50.”

One senior White House official told POLITICO the goal is to have such a declaration 100 percent ready and coordinated should Trump decide to move on it rather than scrambling ex post facto to draw up and justify one.

Yet White House lawyers continue to urge extreme caution, leading to internal strife within the administration over the best path forward if Congress cannot come up with a larger immigration deal. One sticking point has been the role that the Pentagon’s Army Corps of Engineers could play in building a Trump-ordered wall — an idea being discussed in the White House.

The Army Corps is most often affiliated with its environmental disaster prevention and recovery work, and it’s unclear how much the White House can legally redirect funds already earmarked for those projects. Doing so would likely trigger a political backlash as well as challenges in the courts.

“There continue to be divisions within the White House on what the proper approach should be and whether it would be a good idea from a legal and policy matter to invoke the national emergency matter. There is some legal dispute over the scope of the power of the Army Corps of Engineers,” said a Republican close to the White House.

Still, Trump, who wants $5.7 billion for the southern wall, has long stressed that he is not afraid to trigger his emergency powers.

“I have a very powerful alternative, but I didn’t want to use it at this time. Hopefully it will be unnecessary,” Trump said about a potential national emergency declaration when announcing last Friday that he had agreed to reopen the government temporarily to let lawmakers negotiate over border security funding.

"Walls or barriers or whatever you want to call it will be an important part of the solution,” Trump added.

The White House press office did not respond to a request for comment.

A bipartisan, bicameral group of 17 lawmakers met for the first time on Wednesday to begin negotiations on an immigration and border security deal that may avert a national emergency order. In theory, the agreement would trade a boost in border security funding, a top GOP and Trump priority, for legal protections for some undocumented immigrants, a key Democratic priority. But all signs were that a deal was essentially dead before the talks even started, seemingly raising the chances that Trump will deploy his emergency authority.

But there’s no guarantee that Republican lawmakers, or conservatives, would support such a move. Some conservatives fear declaring a national emergency in this instance would set a poor precedent for future leaders; Democrats, for example, could pull the same move to deal with climate change or to broaden Medicare. Other GOP lawmakers have warned Trump against diverting Army Corps of Engineer funds that are earmarked for disaster relief projects in their jurisdictions.

“We’re pretty uniformly opposed to an emergency declaration. That is taking that emergency act beyond where it’s ever been before. We don’t like it. We don’t want to set that precedent,” said Sen. Ron Johnson (R-Wis.) in an interview.

Other GOP members seemed more resigned to such a fate.

“Some of my colleagues think it will be the end of Western civilization if he declares a national emergency. But I don’t,” said Sen. John Kennedy (R-La.).

White House confidant Rep. Mark Meadows (R-N.C.), who heads the hard-line conservative Freedom Caucus, would not comment on any conversations he’s had recently with the White House, except to say that declaring a national emergency is “definitely an option.”

Typically, presidents use such broad powers in the face of military threats, like the 9/11 terrorist attacks, or to respond to health emergencies like the H1N1 influenza pandemic, as President Barack Obama did in 2009. From 1978 through 2018, presidents declared national emergencies 58 times, according to the Brennan Center for Justice.

The idea of declaring a national emergency has been floating around the Trump orbit since his inauguration two years ago. Senior policy adviser Stephen Miller — cheered on by former White House chief strategist Steve Bannon — saw it as a way to expand Trump’s executive authority. Miller, in particular, has long viewed it as a good path to tackle illegal immigration, especially since the issue has so fractured Congress.

If Trump goes through with an emergency order, it could split the Republican Party, said one former senior administration official. It would divide conservatives, driving a wedge between those strongly believe in ending illegal immigration at all costs and those worried about the legal precedent it would set.

“It could be seen as subverting the Constitution for his own ego, and it will be the end of his presidency,” said one former senior administration official.