Washington (CNN)The White House is preparing a draft proclamation for President Donald Trump to declare a national emergency along the southern border and has identified more than $7 billion in potential funds for his signature border wall should he go that route, according to internal documents reviewed by CNN.
Trump has not ruled out using his authority to declare a national emergency and direct the Defense Department to construct a border wall as Congress and the White House fight over a deal to end the government shutdown. But while Trump’s advisers remain divided on the issue, the White House has been moving forward with alternative plans that would bypass Congress.
“The massive amount of aliens who unlawfully enter the United States each day is a direct threat to the safety and security of our nation and constitutes a national emergency,” a draft of a presidential proclamation reads.
“Now, therefore, I, Donald J. Trump, by the authority vested in me by the Constitution and the laws of the United States of America, including the National Emergencies Act (50 U.S.C 1601, et seq.), hereby declare that a national emergency exists at the southern border of the United States,” the draft adds.
The draft was updated as recently as last week, a US government official told CNN.
According to options being considered, the administration could pull: $681 million from Treasury forfeiture funds, $3.6 billion in military construction, $3 billion in Pentagon civil works funds, and $200 million in Department of Homeland Security funds, the official said.
As lawmakers discussed a short-term measure to fund the government Thursday, Trump again raised the prospect of other ways to fund a border wall without congressional approval.
“I have other alternatives if I have to and I’ll use those alternatives if I have to,” he told reporters.
“A lot of people who wants this to happen. The military wants this to happen. This is a virtual invasion of our country,” Trump said.
I want to make four important points about this prospective course of action being considered by the President:
1) If the President does do this, it does not also mean that it then clears the way for the shutdown parts of the government to be reopened. While it may free the majority Republican caucus in the Senate to move a clean continuing resolution, it also frees the President up to just ignore it. He’ll have gotten what he wants, immediate funding and the gratification that comes with it, for his wall. At that point there’s no pressure on him to sign any continuing resolutions or appropriations bills. Regardless of what Republican senators and/or conservative pundits might think, this doesn’t break the logjam preventing funding to reopen the shutdown portions of the government. Rather, it relieves any pressure on the President to actually reopen them as he will have found a way to unilaterally get what he wants, which removes all the pressure being brought to bear on him.
2) If the President crosses this line and declares a national state of emergency regarding border security, he’ll quickly become addicted to it. Some of this will be because of the rush of violating norms, rules, and traditions in a very public and very large scale way. Some of this will be because of all the attention he’ll get from doing so. And some of this will be because he will suddenly have a new toy to play with. If he does this for a fictional border security crisis, he’ll also do it for his other factually inaccurate but deeply held fetishes: multilateral trade agreements that are ripping the US off, Chinese currency manipulation, multilateral military and national security alliances that are taking advantage of the US – none of which are actually happening. And as was the case with his military transgender ban, he’ll be encouraged to use his transgressive new powers for a variety of other hard right dreams such as rewriting US immigration law (which he actually publicly considered doing several months ago), outlawing abortion, declaring national constitutional or reciprocal carry of firearms to ensure Americans can defend themselves against the terrorists, gang members, and drug dealers that are not actually poring over our southern border, etc.
3) While the lower courts, including many of the Federal Courts of Appeal, will overturn this proposed action of declaring a national emergency on the southern border to reallocate funds without Congress’s consent to build his wall, and enjoin them from taking place, the Supreme Court will uphold the action. The one constant in the nominations and appointments of Chief Justice Roberts and Associate Justices Alito, Gorsuch, and Kavanaugh is that they all hold the most expansive views possible of executive branch and presidential power, especially when the president is a Republican. As much as they may or may not overturn a variety of precedents such as Roe V. Wade or try to reinstate the Lochner era of Federal jurisprudence, they were chosen to rubber stamp the executive branch and presidential actions of what Karl Rove thought would be a permanent Republican majority America, where the Congress would have a GOP majority and the president would be a Republican for at least a generation.
4) If we’re lucky enough that the President, should he actually declare a national emergency on the southern border in order to reallocate funds without congressional approval to build his wall, and not actually decide to use this power over and over again, Republican elected and appointed officials, as well as conservative commentators, think tankers, and legal scholars need to prepare themselves for a future Democratic president, perhaps as early as January 2021, declaring a national emergency regarding climate change and thereby forcing the Green New Deal. Declaring one regarding income inequality repealing all the tax cuts since the 1960s. Declaring one that Justice Gorsuch, as well as all the Federal district and appellate court justices who are were confirmed because McConnell refused to allow confirmation of Obama’s nominees, all received stolen goods when they were confirmed and sworn in on the Supreme and other Federal courts, and therefore increasing the size of them and filling those appointments without the Senate’s advise and consent to prevent the GOP from further ratfuckery in Federal judicial appointments. And declaring one regarding mass shootings and school shootings in order to radically reinterpreting the 2nd Amendment and force gun safety measures.
Violating norms, ignoring traditions, and breaking rules are sometimes necessary. None of them should be done for trivial reasons, which includes process reasons, which includes a declaration of national emergency to allocate funds that Congress has not and will not appropriate for a border wall. Violating this norm, issuing a national emergency because the President cannot get Congress to go along with something he wants, is unwilling to negotiate in good faith, and has run out of other options to achieve his goals, creates a very dangerous precedent. We will be lucky, should the President decide to issue such a declaration, that it is just a one off and that future Democratic majorities in Congress and a future Democratic president can agree to revise the law regarding national emergencies and rebalance power back to the legislative branch. Unfortunately, we are more likely to see this President to become addicted to his new toy and try to use it over and over and over again. Republican officials, like Senator Graham, will rue the day they encouraged the President to do this. Unfortunately the rest of us are going to rue it too. It will not only be a massive violation of norms and rules, it will also be a massive threat to national security and that threat will be coming from the Oval Office aided and abetted by the Republican majority Senate and Republican nominated and approved conservative majority on the Supreme Court.