WASHINGTON (CN) – President Donald Trump intends to sign a bipartisan funding package aimed at averting a government shutdown, but will also declare a national emergency in an effort to build a wall along the southern border, the White House said Thursday.
“President Trump will sign the government funding bill, and as he has stated before, he will also take other executive action – including a national emergency – to ensure we stop the national security and humanitarian crisis at the border,” White House Press Secretary Sarah Sanders said in a statement. “The president is once again delivering on his promise to build the wall, protect the border and secure our great country.”
The Senate had been waiting for word from the White House before scheduling a vote on a spending agreement put together by a bipartisan group of negotiators over the past two weeks. The measure would fund the government through September, averting a second government shutdown that was slated to begin at the end of the week.
The Senate passed the spending package 83-16 on Thursday afternoon, and the House approved the measure 300-128 around 9 p.m.
The measure includes $1.375 billion for barriers along the border, far short of the $5.7 billion Trump demanded for a border wall during the month-long shutdown that began in December. Senators said well into Thursday afternoon that they were not sure whether Trump would sign the bill.
In addition to the border barrier funding, the package includes $22.54 billion for more general border security measures, including the hiring of more law enforcement personnel and new technology and equipment at points of entry.
Senate Majority Leader Mitch McConnell, R-Ky., announced around 3 pm that he had spoken to Trump and that the president would be declaring a national emergency in addition to signing the bill.
Trump had long threatened to declare an emergency if Congress did not meet his wall funding request. The move would give him greater authority to shift money from other areas of government into the building of a wall along the southern border.
Under the National Emergencies Act, Congress can terminate an emergency through a joint resolution that passes both the House and Senate. Because the president would very likely veto any such resolution, the resolution would effectively need to pass each chamber with the two-thirds majority required to override a presidential veto.
Presidents must renew a national emergency every year for them to remain in effect and it is relatively common for emergencies to continue for years on end. There were 31 national emergencies in effect as of Jan. 10, according to a Congressional Research Service report.
Lawmakers scrambled in the wake of the news to determine what exactly Trump’s announcement would mean.
While Senator Rand Paul, R-Ky., appeared skeptical of the move, he said it is unclear what authority Trump plans to cite in declaring the national emergency.
“In general I’m not for using emergency powers because I think the Constitution is very clear trying to separate the powers and when you start naming things as emergencies, I think very quickly we lose the checks and balances of government,” Paul told reporters Thursday.
Senator John Cornyn, R-Texas, was similarly unclear on what authority Trump would cite. He said there are also some processes short of an emergency that would allow Trump to shift money from other priorities in order to fund the wall.
While he noted he had previously suggested the move would be unproductive, Cornyn stopped short of saying he would support congressional action against the declaration.
“That’s a few moves down the chessboard,” Cornyn told reporters. “I’m not prepared because I don’t know exactly what the president’s going to do.”
Senator Susan Collins, R-Maine, was quicker to condemn the move, calling it of “dubious constitutionality.”
“It undermines the role of Congress and the appropriations process and it’s just not good policy,” Collins told reporters.
Collins also said the emergency would set a bad precedent going forward, a point Democrats were quick to pick up on themselves.
Speaker of the House Nancy Pelosi, D-Calif., noted a future liberal president could declare a national emergency on gun violence using the same justification as Trump.
“The precedent that the president is setting here is something that should be met with great unease and dismay by the Republicans,” Pelosi told reporters Thursday.
Pelosi said Democrats are reviewing their options on how to respond to Trump’s move. She left open the possibility that lawmakers could bring a legal challenge to the emergency declaration.
“We will review our options, we will be prepared to respond appropriately to it,” Pelosi told reporters.
Representative Jerry Nadler, the New York Democrat who chairs the House Judiciary Committee, was confident the House will vote on a resolution to end the emergency. He told reporters outside the House chamber Thursday night such a resolution would be necessary to rebuff an “incredible unconstitutional power grab.”
“We have to do it to vindicate the Constitution,” Nadler said.
Nadler said he has not talked with Pelosi about the resolution and acknowledged Congress’ options against the action are dependent on what specific authority Trump claims.
“One thing he cannot do is appropriate money without Congress,” Nadler told reporters. “One of the core points of our government is that you have a separation of powers, that Congress appropriates money, not the president. And it’s an incredible abuse of power to try to seize that authority.”
Nadler also said he thinks there could be a lawsuit from lawmakers. Meanwhile, other potential legal challenges to the move have already started lining up.
Nonprofit group Protect Democracy has teamed on one such challenge with the Niskanen Center and the groups have a lawsuit ready to be filed on behalf of the County of El Paso, Texas, and the Border Network for Human Rights, an immigration advocacy group that works with border communities.
Though the details will depend on what authority Trump cites in the declaration, the groups said in a statement the suit would be built on the harm the move would have on both groups.
“This threatened emergency declaration will further damage El Paso County’s reputation and economy and we are determined to stop this from happening,” El Paso County Judge Ricardo Samaniego said in a statement.
As for whether the president intends to use an emergency declaration to seize land for his border wall, eminent domain attorney Charles McFarland said Trump still needs Congress.
“In order to use a national emergency to swiftly take private land, Congress has to appropriate funds specifically for the acquisition,” McFarland, also a Texas representative to the Owners’ Counsel of America, said in an interview Thursday.
The president seems be trying to circumvent this requirement, “which means he will not have checked the second box in the Declaration of Taking Act,” McFarland said.
“The federal government has the broad power to take private property through its exercise of eminent domain, but if he goes it alone without the support of Congress, his project will be easily challenged,” he said.
McFarland’s firm is based in Houston, Texas, where he has spent 23 years assessing the impacts of public projects and representing property owners whose land has been taken by the government for public use.
“Trump’s actions will be challenged in court all over the country. We will argue that he is not protected by the National Emergencies Act or the Declaration of Taking Act, and there is no other statute that allows him to take land through a national emergency,” McFarland said.
Furthermore, McFarland said Trump’s basis for eminent domain is shrouded with “racial animus” so he could also face challenges related to the Fifth Amendment public use requirement. The requirement ensures that property taken by the government is meant to be used for the public’s overall benefit.
McFarland cited President Franklin D. Roosevelt’s internment of U.S. citizens and residents of Japanese descent during World War II as an example of presidential overreach of emergency powers not used for public benefit.