Trump edges toward declaring emergency over border wall, but court fight likely

Trump administration officials made an urgent case Monday that the situation at the U.S.-Mexico border has reached a crisis level, laying the groundwork for President Donald Trump to possibly declare a national emergency that would empower him to construct a border wall without congressional approval.

With the federal government partially shut down amid his stalemate with Congress, Trump will attempt to bolster the administration’s position Tuesday by delivering a prime-time televised address to the nation from the Oval Office - the first of his presidency. He will then travel Thursday to visit the nation’s southern border.

"There is a humanitarian and national security crisis," Vice President Mike Pence told reporters Monday, a line that he and Homeland Security Secretary Kirstjen Nielsen repeated several times. Pence also said he expected attempted crossings by undocumented migrants to "dramatically increase" as winter gives way to spring.

Many immigration experts, however, have said the Trump administration is exaggerating the security threat at the border and amplifying data in misleading ways or with outright falsehoods.

Vexed by Democrats' refusal to yield to his demand for $5.7 billion for wall funding, Trump increasingly views a national emergency declaration as a viable, if risky, way for him to build a portion of his long-promised barrier, according to senior administration officials.

Although Trump has made "no decision" about a declaration, Pence said, lawyers in the White House Counsel's Office are working to determine the president's options and prepare for possible legal obstacles.

Such a move would be a fraught act of brinkmanship at the dawn of a newly divided government, sparking a firestorm with House Democrats and certain challenges in federal courts. But Trump believes forcing a drastic reckoning by executive action may be necessary, given the Democratic resistance and the wall's symbolic power for his core voters, officials said.

"We will oppose any effort by the president to make himself a king and a tyrant," House Judiciary Committee Chairman Jerrold Nadler, D-N.Y., said Monday during a visit to the border. "The president has no authority to usurp Congress' power of the purse."

Jeh Johnson, who served in the Obama administration as secretary of homeland security and general counsel of the Defense Department, said the laws Trump could invoke with his national emergency declaration are designed to authorize military construction projects during wartime. He said using them for a border wall could curtail presidential powers in the years to come as lawmakers react to Trump and work to constrain him.

"The danger of using an authority like this and stretching it beyond its intended use is that Congress could then take it away, and it could not be used in situations where it's really needed," Johnson said.

Robert Bauer, a White House counsel under President Barack Obama, said Trump would be poorly positioned to defend such an action in federal courts, in part because his statements about the wall have been contradictory and have contained provable falsehoods.

"He has fatally compromised his ability to defend this," Bauer said. "He has so politicized the issue, and he has been so reckless in his presentation of what the stakes are that he walks into court with two strikes against him, the ball about to break over the plate, and he's swinging too late."

Trump could theoretically use the National Emergencies Act of 1976 to declare an emergency, activating executive authorities including the reprogramming of some Defense Department funds.

Trump first mentioned the possibility of declaring a national emergency Friday, telling reporters in the Rose Garden: "I may do it. We can call a national emergency and build it very quickly. It's another way of doing it."

In private conversations with advisers at a Sunday senior staff retreat at Camp David and back at the White House, Trump said he may soon declare a national emergency unless he is able to secure funds from Congress to build a wall, according to two officials involved in those discussions.

Trump's leading allies on the right, such as Fox News host and presidential confidant Sean Hannity, have spoken encouragingly about the prospect and emboldened Trump in recent days, officials said.

"I'm guessing he's going to declare a national emergency," Hannity said on his radio program Monday. "In this case, I think the president would be wide open to a court challenge . . . (but for the) victims of crime happening in this country, that should be enough of a national emergency."

Should Trump move forward, the political fallout probably would be significant. Democrats, newly in control of the House, have warned that doing so would be an abuse of power that would prompt investigations.

Trump hopes to use his bully pulpit to convince voters that the situation at the border is dangerous enough to necessitate construction of the wall. Though the White House has not released details of his planned border visit, the Federal Aviation Administration issued a notice that airspace in the vicinity of McAllen, Texas, would be restricted Thursday because of "VIP movement."

The city of 142,000 people is home to a U.S. Customs and Border Protection detention facility for migrants who have crossed illegally into the United States. In June, first lady Melania Trump visited a shelter for migrant children in McAllen.

On Capitol Hill, meanwhile, Republicans have shown cracks in their ranks as the shutdown has dragged into its third week. Moderate GOP lawmakers have not shown much willingness to back a national emergency declaration, and a handful of Republican senators facing difficult re-election bids in 2020 - including Cory Gardner of Colorado, Susan Collins of Maine and Thom Tillis of North Carolina - have signaled support for reopening the government and called for a bipartisan deal to be struck.

"I'm confident he could declare a national emergency, but what that may mean in terms of adding new elements to this - court hearings and litigation that may carry this on for weeks and months and years - to me, injecting a new element in this just makes it more complicated," Sen. John Cornyn, R-Texas, told CNN on Monday.

Pence called House Republicans last week and urged them to vote against Democratic measures that would have reopened the government without wall funding, but about a half-dozen broke ranks.

House Speaker Nancy Pelosi, D-Calif. - aiming to peel off more Republicans this week - has planned a new series of votes on a piecemeal reopening of the government, beginning with the Treasury Department and the IRS. This week's votes will put Republicans in a particularly difficult position because they will spotlight the issue of whether millions of Americans will have trouble receiving their tax refund checks.

Hoping to stave off further GOP defections, Pence and Nielsen are scheduled to brief House Republicans on Tuesday, ahead of the president's remarks to the nation.

"When they see the scope of this crisis, when they see the facts presented, they understand why the president is so adamant about doing something meaningful to advance border security," Pence said. "We'll just continue educating members."

Trump's advisers spent much of Monday laying the political foundation for the possibility of an emergency declaration should negotiations continue to deteriorate. At the White House briefing with reporters, Pence and Nielsen stressed a surge in migrant families streaming into the United States, seeking asylum. They also highlighted the challenges facing border agents who are managing holding cells that have become dangerously overcrowded with children, many of whom are falling ill. Two Guatemalan children taken into U.S. custody died in December.

"The crisis is skyrocketing," Nielsen said. Arguing for an increase in funding, she added: "This is not a status quo situation. . . . We cannot do more with less."

The administration is trying to highlight the security threat, with Nielsen saying there has been a spike in illegal drugs such as cocaine, heroin and methamphetamine at the border, as well as an influx of dangerous people.

For instance, Nielsen's briefing on the border crisis stated that 3,755 known or suspected terrorists tried to illegally enter the United States in fiscal 2017. But she did not break down how many of these people showed up at airports vs. land crossings at the U.S.-Mexico border. According to separate Homeland Security data for 2017, most of the 2,554 people on the terrorist watch list who were encountered by U.S. officials tried to enter through airports (2,170) or by sea (49).

Pence and Nielsen made a similarly bleak presentation over the weekend to Democratic congressional aides. The vice president told reporters that some Democratic staffers said they "did not dispute" the administration's statistics. But most Democrats left those sessions discouraged and convinced that the White House was more interested in arguing that there is a crisis that necessitates a border wall than in ending the shutdown impasse, according to two Democrats familiar with the deliberations who were not authorized to speak publicly.

Johnson criticized the Trump administration's public posturing, saying it is irresponsible for government leaders to sound alarmist unless the situation truly warrants such rhetoric.

"When I was secretary of homeland security, I hesitated to call something a crisis because people really do listen to their leaders, and when you refer to something as a crisis you expect people to react accordingly," Johnson said. "What do you expect the public to do with that information except become frightened?"

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The Washington Post’s Nick Miroff, Felicia Sonmez and Josh Dawsey contributed to this report.