Trump's idea to declare national emergency raises legality questions

Lawmakers in both parties on Sunday rejected the prospect of President TrumpDonald John TrumpRepublicans consider skipping witnesses in Trump impeachment trial Bombshell Afghanistan report bolsters calls for end to 'forever wars' Lawmakers dismiss Chinese retaliatory threat to US tech MORE solving the ongoing budget impasse by skirting Congress to declare a "national emergency," with several Democrats raising doubts over the legality of the idea.

“I don’t know what he’s basing this on, but he’s faced so many lawsuits when he ignores the law and ignores tradition and precedent, and just goes forward without any concern,” Sen. Dick DurbinRichard (Dick) Joseph DurbinSupreme Court poised to hear first major gun case in a decade Protecting the future of student data privacy: The time to act is now Overnight Health Care: Crunch time for Congress on surprise medical bills | CDC confirms 47 vaping-related deaths | Massachusetts passes flavored tobacco, vaping products ban MORE (D-Ill.) said on CBS's “Face the Nation," addressing Trump’s threat to declare a national emergency in order to build a border wall.

“He’ll face a challenge, I’m sure if he oversteps what the law requires when it comes to his responsibility as commander in chief,” Durbin added.

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Republicans have also said they would rather the president not use such executive authority to build the wall, but White House officials on Sunday indicated the president has the power to move funding around if needed and the obligation to defend the country’s border.

The split over the use of national emergency powers underscores the divisions over border security that triggered the ongoing partial government shutdown that has lasted 16 days and counting.

Speaking to reporters at the White House as he departed for Camp David on Sunday, Trump reiterated that he was weighing the move as negotiations hit a standstill.

“I may declare a national emergency dependent on what’s going to happen over the next few days,” Trump said. 

The president was pessimistic about the chances for progress during a Sunday meeting between Vice President Pence and congressional aides, but said there would be “very serious talks come Monday, Tuesday, Wednesday.”

As Trump has dug in on his demand for $5 billion to fund the wall along the southern border, he floated the suggestion on Friday of using national emergency powers to authorize the project. Democrats met the proposal with skepticism.

Rep. Adam SchiffAdam Bennett SchiffRepublicans consider skipping witnesses in Trump impeachment trial Trump rails against FBI, impeachment during Pennsylvania rally Democrats reach cusp of impeachment MORE (D-Calif.), the chairman of the House Intelligence Committee, said on CNN's "State of the Union" that the possibility of using national emergency powers to build the wall is a "non-starter." The congressman argued that Trump should focus on reopening the government in the meantime.

Rep. Adam SmithDavid (Adam) Adam SmithBombshell Afghanistan report bolsters calls for end to 'forever wars' Overnight Defense: Dems unveil impeachment articles against Trump | Saudi military flight students grounded after shooting | Defense bill takes heat from progressives | Pentagon watchdog to probe use of personnel on border Armed Services chair calls defense bill 'most progressive in the history of the country' after criticism MORE (D-Wash.), the chairman of the House Armed Services Committee, said on ABC’s “This Week” that he believes the president has the legal authority to declare a national emergency and have the military build a structure like the wall, but argued that Trump's order may not hold up to legal scrutiny.

“In this case, I think the president would be wide open to a court challenge saying, where is the emergency?” Smith said. “You have to establish that in order to do this. But beyond that, this would be a terrible use of Department of Defense dollars.” 

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White House press secretary Sarah Huckabee Sanders did not address whether Trump had begun drafting a national emergency declaration for the wall, or whether he had a deadline for doing so, but said on "Fox News Sunday" that the president "is prepared to do what it takes to protect our borders."

"As we’ve said for last several weeks, we're looking and exploring every option available that the president has," she said. "Whatever action he takes will certainly be lawful, and we’re looking at every option we can."

Rep. Liz CheneyElizabeth (Liz) Lynn CheneyGOP calls for minority hearing on impeachment, threatens procedural measures Overnight Defense — Presented by Boeing — Stopgap spending bill includes military pay raise | Schumer presses Pentagon to protect impeachment witnesses | US ends civil-nuclear waiver in Iran Cruz, Graham and Cheney call on Trump to end all nuclear waivers for Iran MORE (R-Wyo.), a member of the House GOP leadership team, said while the president may hold the authority to build the wall through an emergency declaration, lawmakers should broker a compromise on border security.

"Nobody wants him to invoke it and I don’t believe the president wants to invoke it," Cheney said of the possible emergency declaration.

"We’ve got to see the games stop," Cheney added. "And this is not an issue of, you know, who’s doing what and who has the upper hand. The border has got to be secure that’s what the American people want to see and they want the partisanship to end."

Democrats have refused to budge from their offer of $1.3 billion for border security measures, which includes no money for Trump's wall.

The White House and Republicans have repeatedly hit Democrats over claims of hypocrisy, citing past statements in support of fencing and barriers along the southern border.

The two sides have been unable to inch toward an agreement in recent negotiations, setting up the prospect of a shutdown that drags on well into 2019.

Trump confirmed on Friday that he told Democrats during a meeting that day at the White House that he would be willing to keep the shutdown going for "months or even years" over wall funding.

As he prepared to leave for Camp David, the president painted the shutdown as a "very important battle to win."

"If we don’t find a solution, it’s going to go on for a long time," Trump said. "There’s not going to be any bend right here."