President Trump said last week there’s a “good chance” he will declare a national emergency to obtain border-wall funding, but Senate Majority Leader Mitch McConnell has advised against it, and now Fox News legal analyst Andrew Napolitano predicts courts would block the move anyway.
The problem, Napolitano said Monday on the program “America’s Newsroom,” is that much of the land where the wall would be built is held privately.
Courts would not allow Trump to use federal funds to acquire private property and build the wall without congressional approval, he argued.
“I think the law is very clear, and I think the president has been advised of it, that if he signs an executive order declaring a national emergency and directing the military to spend money that has not been expressly appropriated for the wall or that has not been expressly appropriated for eminent domain – since much of the real estate where they want to build the wall is privately owned – I think it’s pretty clear that court will stop him from doing that,” Napolitano said.
McConnell, according to the Washington Post, told Trump last week that such action could lead to a resolution of disapproval by Congress, dividing the Republican Party.
Under the National Emergencies Act, Congress has the power to pass a joint resolution to terminate a presidential declaration.
A Democratic House leadership aide told ABC News in a statement Monday that the president “has failed to convince the American people and Congress that there is a crisis on our Southern border.”
“The House of Representatives will vigorously challenge any declaration that seeks an end run around Congress’s power of the purse.”
Congressional negotiators must reach a legislative solution by Feb. 15 or risk another partial government shutdown.
Napolitano acknowledged that declaring an emergency could provide Trump with a political win, fulfilling a major campaign promise.
Nevertheless, it’s almost certain the president ultimately will lose, the former judge said, because the law “is very clear.”
Trump warned in an interview that aired Sunday on CBS’ “Face the Nation” Sunday he could declare a national emergency if Congress doesn’t fund the wall.
“I don’t take anything off the table,” Trump said.
Trump told reporters in the Cabinet Room of the White House last Friday, “I think there’s a good chance we’ll have to” declare an emergency.
Senate Majority Whip John Thune, R-S.D., told reporters last week that he and many of his colleagues are “uncomfortable” with an emergency declaration “for different reasons, some of which are constitutional and separation of powers.”
“We prefer that not be the direction that the administration chooses to go. But the Democrats have to be willing to play ball here if we’re going to get a deal,” he said.
Rep. Roger Marshall, R-Kan., emphasized Sunday on the Fox News Channel he has no doubt that there’s a “crisis” on the border in need of immediate attention.
“I’ve been to the border, and I know a crisis when I see it,” Marshall said.
“We need to build the wall. That’s the first step in solving the crisis. Once we secure that border, then we can move on to the many other problems we have that include housing 40,000 people and feeding them every night.”