White House

The pitfalls of a plan for Trump to shift federal dollars without an emergency declaration are coming into clearer view.

The White House is firming up plans to redirect unspent federal dollars as a way of funding President Donald Trump’s border wall without taking the dramatic step of invoking a national emergency.

Done by executive order, this plan would allow the White House to shift money from different budgetary accounts without congressional approval, circumventing Democrats who refuse to give Trump anything like the $5.7 billion he has demanded. Nor would it require a controversial emergency declaration.

Story Continued Below

The emerging consensus among acting chief of staff Mick Mulvaney and top budget officials is to shift money from two Army Corps of Engineers’ flood control projects in Northern California, as well as from disaster relief funds intended for California and Puerto Rico. The plan will also tap unspent Department of Defense funds for military construction, like family housing or infrastructure for military bases, according to three sources familiar with the negotiations.

“There are certain sums of money that are available to the president, to any president,” Mulvaney said on Meet the Press Sunday. “So you comb through the law at the president’s request…. And there’s pots of money where presidents, all presidents, have access to without a national emergency.”

But the strategy is far from a cure-all for a president with no good options, and it has already sparked debate within the White House. Moving funds by executive order is virtually certain to draw instant court challenges, with opponents, including some powerful members of Congress, arguing the president is encroaching on the legislative branch’s constitutional power to appropriate funds.

Some Trump officials, including those aligned with senior adviser Stephen Miller, have argued internally that the gambit might be even more vulnerable to court challenges than a national emergency declaration. And in a sign of the political fallout, the top Republican on the House Armed Services Committee has argued that tapping military construction money would hurt the armed forces’ potential readiness.

Until now, Trump officials had focused on the drawbacks of a possible national emergency declaration. But as the alternative option of moving money by executive order has come into clearer relief ahead of a Feb. 15 deadline for a spending deal with Congress that could avert a new government shutdown, so have the risks of that alternative option.

“It will create a firestorm, once you start taking money that congressmen think is in their in their districts,” said Jim Dyer, a former staff director for the House Appropriations Committee. “You will cause yourself a problem if that money was directed away from any type of project or activity because I guarantee it has some constituency on Capitol Hill.”

Inside the White House, the president’s lawyers have for weeks grappled with the question of how to defend Trump should he choose to assert broad executive powers to build the wall. While the phrase “national emergency” has an extreme ring, some administration attorneys note that it is a well-established power under a 1976 law that has been invoked 58 times by past presidents. They call it uncontroversial that presidents have broad discretion to declare a national emergencies and similarly broad authority to deal with them.

“President is on sound legal ground to declare a National Emergency… this is hardly unprecedented,” Trump tweeted on Sunday, quoting comments by Rep. Tom McClintock (R-Calif.)

“The appeal of the national emergency is really the hope that, by just declaring it, by mouthing the words ‘national defense,’ what they would be doing is saying to the courts, ‘Hands off, this is a military determination and you can’t touch it,’” said David French, a senior fellow at the National Review Institute and a former JAG attorney. (Trump has said he would invoke emergency powers in the name of national defense against drugs, criminals and even terrorists.)

A national emergency declaration, however, does not unlock unlimited powers and would be subject to court challenges. The White House counsel’s office has been studying two statues in detail that Trump could invoke under national emergency circumstances — and both come with problems.

One, 10 USC section 2808, authorizes military construction projects that support the use of the armed forces. Those are typically things like barracks, helipads, and other military fortifications. The other, 33 USC section 2293, allows the Secretary of the Army to redirect funds from the Army’s civil works program for projects including “authorized civil works.” White House lawyers, however, expect to be challenged about whether the wall truly supports the armed forces or is an authorized civil work.

Neither the White House press office nor a spokeswoman for the Office of Management and Budget responded to requests for comment.

While White House officials still hope Congress can work out a deal to keep the government open, a bipartisan committee hit roadblocks over the weekend that dimmed hopes for a compromise, and Trump officials continue to sift through the alternatives — well aware of polls that showed Trump took most of the blame for the unpopular 35-day shutdown that began in late December.

“My guess is the president ends up using executive authority to try to re-program funds,” said one Republican close to the White House, who stressed that no one knew exactly what the president would do over the next five days. “Then, in the coming months through some form of military funds, they start building parts of the physical barrier. He can start claiming that, despite Democrats’ intransigence, he has done something on the wall.”

Another Republican close to the administration predicted that Trump would cobble together money for his wall from multiple sources. That could mean signing a congressional deal likely to include only a fraction of the $5.7 billion he seeks while supplementing it with executive action that accesses billions more.

Even if Trump decides that the legal obstacles of an executive order are less daunting that those that would come with a national emergency declaration, tapping unspent funds intended for disaster relief and military construction would bring serious political and policy risks.

By diverting disaster money intended for heavily Democratic California and Puerto Rico — instead of staunchly Republican Texas, which is still rebuilding after Hurricane Harvey — Trump opens himself up to criticism that he’s favoring red states over blue ones. Both of Texas’ GOP senators, Ted Cruz and John Cornyn, have made clear their opposition to re-programming any Harvey relief funds.

Re-directing the military funds by fiat is also more complicated than it might sound, in part because Pentagon spending typically happens slowly over long time frames.

“Given the priority this is associated with, I imagine a lot of the red tape will be expedited, but it doesn’t mean it can happen overnight. Military construction is a five-year appropriation for a reason, because these projects take a long time. Military construction is not a speedy process,” said John Conger, a former senior Obama-era Pentagon official.

Wesley Morgan, Connor O’Brien, Jennifer Scholtes, and Annie Snider contributed reporting.

Immigration

The president is set to rally in the hometown of his likely 2020 rival — and O’Rourke plans to hit back at a protest of his own.

EL PASO, Texas — The showdown between Donald Trump and Beto O’Rourke over the president’s border wall is about to get real.

The president was en route to O’Rourke’s hometown Monday for a campaign rally touting his long-sought wall. But O’Rourke is set to headline a counter-rally at a sports complex across the street, setting the stage for the first in-person clash of 2020 between Trump and a potential Democratic rival.

Story Continued Below

Lambasting what he called “the president’s lies about our community, about the U.S.-Mexico border, about immigrants, about Mexicans,” O’Rourke said on a conference call with reporters Monday, “All of this will find its match in El Paso, and not from any one person, but from all of us.”

El Paso, he added, is the “example that the country needs right now.”

The call-and-response in Washington and West Texas crystallized the partisan battle over immigration even before Trump landed in this border city. Staring down a potential second government shutdown over border security, Trump picked this heavily Democratic and Latino region to redouble his call for a border wall, an issue that propelled him to the presidency and remains at the center of his reelection campaign.

“Will be heading to El Paso very soon,” Trump said on Twitter ahead of his arrival here on Monday night. “Big speech on Border Security and much else tonight. Tremendous crowd! See you later!”

O’Rourke said he does not interpret Trump’s visit as a personal challenge to him, but rather as “an effort to use this community as a prop to make his case for the border wall.”

Yet when Trump touches down here, it will mark the most direct, real-time clash yet between Trump and a 2020 Democratic contender. O’Rourke, a former congressman, would join the top tier of Democratic presidential candidates if he decides to run.

The location of the dueling rallies appeared destined to inflame controversy. A city of about 680,000 people, El Paso is a Democratic oasis in a heavily Republican state — closer geographically to the California state line than to San Antonio or Houston. More than 80 percent of the population in El Paso County is Hispanic, and Trump is so deeply unpopular here that in 2016, he won just 26 percent of the county’s vote.

O’Rourke, meanwhile, has made immigration a central part of his platform following his closer-than-expected loss to Republican Ted Cruz in last year’s Texas Senate race. Before the counter-rally against Trump, O’Rourke drew publicity for walking across the border form El Paso to Juarez to meet with asylum seekers and for visiting a detention camp for migrant children at Tornillo. On Christmas Eve, he was photographed passing out pizza slices to immigrant children in El Paso.

“The President, using the same racist, inflammatory rhetoric of years past, seeks to build a wall, to take kids from their parents, to deploy the United States Army on American soil, to continue mass deportations and to end the protection for Dreamers,” O’Rourke wrote on his online journal on Medium ahead of Trump’s visit. “In other words, he seeks in one administration to repeat all the mistakes of the last half-century. And with past as prologue, we know exactly how that will end.”

Trump is under pressure across the political spectrum on immigration. His base is demanding money for a border wall, of course. But a majority of voters oppose shutting the government down again to force Congress to appropriate money for a wall, according to recent polls. And declaring a national emergency is no quick fix for Trump; the idea lacks broad support.

Trump has dismissed O’Rourke as a “total lightweight,” saying in December that “I thought you were supposed to win before you run for president.” But his singling out of El Paso — first in his State of the Union address, and then on Monday — only increased attention on the former congressman and his city.

“The border city of El Paso, Texas used to have extremely high rates of violent crime — one of the highest in the entire country, and considered one of our nation’s most dangerous cities,” Trump said in his State of the Union address. “Now, immediately upon its building, with a powerful barrier in place, El Paso is one of the safest cities in our country. Simply put: Walls work, and walls save lives.”

Trump’s claim that El Paso used to be one of the nation’s most dangerous cities before erecting a barrier has been widely discredited. El Paso has long enjoyed a violent crime rate lower than the national average for cities of similar size, according to PolitiFact, the political fact-checking website. “Even more, the violent crime rate went up — not down, as Trump claimed — after the construction of a border fence in the region,” the site found.

The El Paso Times, in its own analysis, came to a similar conclusion after Texas Attorney General Ken Paxton told Trump earlier this year that a fence had reduced crime in El Paso.

Preparing for Trump’s visit, local officials in El Paso gathered at a government building downtown on Monday afternoon to decry Trump’s characterization of lawlessness in El Paso before the construction of a fence.

Joining about a dozen local leaders at a press conference, El Paso County District Attorney Jaime Esparza said fencing along the border here “made really no difference one way or the other.”

Veronica Escobar, the Democrat elected to succeed O’Rourke in the House, said El Paso residents were determined to correct the “misinformation that the president has put out.”

“For many of us, being a resident of the border is something that we’re very proud of,” she said. “For many of us, this is personal, because it is an attack on our identity, it is an attack on our history, it is an attack on our families.”