Hill GOP support grows for Trump to make emergency declaration

Republican support for an emergency declaration to build President Donald Trump’s border wall is growing in Congress, as GOP leaders and White House officials view it as a way out of a shutdown fight they’re losing.

With a partial government shutdown now in its 18th day, and Trump weighing the extraordinary move ahead of an Oval Office address Tuesday night, some of the president’s advisers argue an emergency declaration of a border crisis — to free up billions of dollars for Trump’s border wall — would allow Republicans to reopen the federal government without looking like they’ve caved to Democrats.

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Trump allies believe it would send an unmistakable message to the president’s base that he’s dead serious about border security. And GOP leaders on Capitol Hill also know support for the shutdown is slowly eroding inside the party, as more moderate Republicans call for an end to the crisis.

Democrats have already suggested the move would be unconstitutional, arguing that Trump has no proof that an emergency actually exists and no authority to move around already-appropriated federal funds without congressional approval. Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer will follow Trump’s address with their own rebuttal and will be sure to hit that point.

Trump is scheduled to meet with cable and network anchors on Tuesday for an off-the-record lunch to preview the speech, according to a White House official.

Vice President Mike Pence, who will huddle with Hill Republicans Tuesday night to discuss the shutdown and the possibility of Trump taking unilateral action, told NBC’s “Today” that Trump had not made a decision yet on how to proceed. Trump, however, will “explain to the American people that we have a humanitarian and security crisis at our southern border,” he said.

“It is a real crisis,” Pence said. “Tonight he will tell the American people why Congress should act.”

Pence and Homeland Secretary Secretary Kirstjen Nielsen will brief House Republicans Tuesday night. Multiple GOP leadership aides said they expected the GOP conference to be open to the idea.

“I think that if Pence and Nielsen come in and do a hypothetical walk-thru to members about how the process would work, and we could re-open the government by the end of the week, even tonight, so that paychecks weren’t affected, I think members would take that,” said a GOP leadership aide. “This emergency declaration could be an out for everybody.”

Congress alone has the power of the purse under the Constitution. But presidents are able to use unobligated military funds during a national emergency. Whether such a crisis exists, of course, is hotly contested, with Democrats noting that there are actually fewer border apprehensions this year than in past decades.

Rep. Susan Brooks (R-Ind.) said she would back Trump’s decision to declare a national emergency, citing the swelling number of child migrants who have crossed the border.

“I do think that this is a much greater crisis that we’ve seen in the past at the border. So if the president deems that a national emergency, then yes, I would support that,” she said in an interview with radio host Gordon Deal.

Trump would almost certainly face an immediate challenge in the courts, with a messy legal battle that could drag out for months if not years.

House Majority Leader Steny Hoyer (D-Md.) told reporters Tuesday that the possibility of a lawsuit had not yet been discussed among House Democratic leaders, but he argued “it certainly could” constitute an abuse of power.

“The president appears to believe that he can do individually that which previous presidents and the constitution require be done by the policy makers, the Congress,” Hoyer told reporters. “I don’t think the president has that authority.”

Republicans and White House officials who support the idea don’t care. Let the courts deal with it, they say. And Trump wouldn’t be accused of caving, they argue.

“I can see the benefit of why he would pursue that approach if Democrats refuse to even negotiate. They don’t want to talk period and that’s not an approach that is sustainable,” said a senior congressional Republican aide.

Not all GOP lawmakers are sold, however. Some senior Hill Republicans worry announcing the emergency declaration followed by passage of Democratic spending bills would be viewed as a defeat within the party. Some believe Trump can win a shutdown fight against Democrats if he continues to hold out for $5 billion for the wall. Other Republicans said it could be difficult to endorse a process that circumvents Congress.

By backing what would be an explosive move, GOP leaders could open themselves up to accusations of hypocrisy.

For years, they complained about what they viewed as executive overreach on immigration policy by former President Barack Obama. By supporting an emergency declaration by Trump without proof of an emergency — all to fulfill a campaign promise — Republicans would be greenlighting Trump’s moves to usurp congressional authority.

Burgess Everett, John Bresnahan and Sarah Ferris contributed to this report.