National emergency coming? Trump announces border trip amid talk of using authority to build wall

US President Donald Trump says he will address the nation and later go to the border with Mexico – a day after hinting he could declare a national emergency as government shutdown over funding of his border wall enters week three.

Trump tweeted on Monday that he intends to address the nation on Tuesday evening about the “humanitarian and national security crisis” on the southern border.

Earlier in the day, White House press secretary Sarah Huckabee Sanders said that the president will visit the border with Mexico on Thursday, to meet with “those on the frontlines of the national security and humanitarian crisis.”

The “crisis” phrasing in both announcements has sparked speculation that the White House might be moving towards declaring a national emergency. This would allow Trump to bypass Congress and use Pentagon funds to build a barrier along the border with Mexico.

Trump has not yet made a decision on declaring a national emergency, Vice President Mike Pence told reporters, adding that the White House counsel’s office is looking at the legality of such a declaration and urging the Democrats to get back to the negotiating table.

A quarter of the US government has been shut down since December 22, affecting some 800,000 federal employees, because congressional Democrats have refused to approve any funding for the border wall. Trump has stood by his demand for $5.6 billion approved by the Republican-majority House before its term ran out on January 3. Democrat leaders have alternately called the wall too expensive, obsolete and “immoral.”

Trump brought up the idea of a national emergency during a press appearance on Friday at the White House Rose Garden, and again over the weekend, as he traveled to the presidential retreat at Camp David, Maryland. While some Democrats rejected it out of hand, others admitted it was technically in his power.

“If Harry Truman couldn't nationalize the steel industry during wartime, this president doesn't have the power to declare an emergency and build a multibillion-dollar wall on the border. So, that's a nonstarter,” said Rep. Adam Schiff (D-California), one of Trump’s most vocal critics.

His colleague Adam Smith (D-Washington), was less convinced.

“Unfortunately, the short answer is yes,” Smith told ABC's ‘This Week’ host George Stephanopoulos on Sunday, when asked if Trump could declare an emergency to build the wall. However, he added, “I think the president would be wide open to a court challenge saying, where is the emergency? You have to establish that in order to do this.”

Trump himself quoted Smith’s admission in a tweet, then added “No doubt, but let’s get our deal done in Congress!”

Will Chamberlain, a Washington, DC-based lawyer, looked at the relevant statutes and argued that – unlike Truman in Schiff’s example – Trump would be on more solid legal ground with regards to the southern border. He cited the 2015 declaration of a national emergency by President Barack Obama, due to civil unrest in Burundi.

Moreover, Chamberlain argued, in order to overrule an emergency declaration, both the House and the Senate would have to adopt a joint resolution with veto-proof majorities. This appears extremely unlikely, since Democrats don’t have a three-fifths majority in the House and are a minority in the Senate.

This still leaves open the possibility of a Democrat-backed legal challenge, most likely before a federal judge in California, along the same lines as lawsuits seeking to block Trump’s travel ban and changes to DACA and asylum policy.

Funding the wall through a national emergency, however, would remove the main point of contention with Congress, clearing the way to end the government shutdown and resume paying the federal workers affected.

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