Napolitano predicts courts would reject Trump emergency declaration for wall

Fox News legal analyst Andrew Napolitano predicted the courts will prevent President TrumpDonald John TrumpTrump pushes back on recent polling data, says internal numbers are 'strongest we've had so far' Illinois state lawmaker apologizes for photos depicting mock assassination of Trump Scaramucci assembling team of former Cabinet members to speak out against Trump MORE from circumventing Congress and declaring a national emergency to build a wall on the Mexican border.

In an appearance Monday on Fox News' "America's Newsroom," Napolitano said he believed the courts would stop Trump because much of the land on the border where the wall would be built is held privately.

As a result, he suggested the courts would not stand for Trump making the decision to use federal funds to acquire private property and build the wall without congressional approval.

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“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.

Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellTrump faces crucial decisions on economy, guns Are Democrats turning Trump-like? House Democrat calls for gun control: Cities can ban plastic straws but 'we can't ban assault weapons?' MORE (R-Ky.) talked to Trump last week, urging him not to declare a national emergency, according to The Washington Post. McConnell said doing so could lead to a resolution of disapproval by Congress, which would export the GOP to infighting.

Trump has been signaling a renewed interest in declaring a national emergency to build the wall, even as congressional negotiators work to reach a legislative solution by Feb. 15.

Trump said last week there is a “good chance” he will declare an emergency in order to obtain funding for a wall. 

Napolitano did say that declaring an emergency could provide Trump with a political win, since he would be able to tell his political base that he was building the wall.

“He might even be able to claim some measure of political victory if he signs the order,” Napolitano said.

Fox News host Jon Scott followed up with a clarification, asking if Trump would “win by losing” in that scenario.

“Yes, but I am almost certain he’ll lose,” Napolitano said. “The law is very clear.”