Trump's idea to declare national emergency raises legality questions

Lawmakers in both parties on Sunday rejected the prospect of President TrumpDonald John TrumpDem senator says Zelensky was 'feeling the pressure' to probe Bidens 2020 Dems slam Trump decision on West Bank settlements Trump calls latest impeachment hearings 'a great day for Republicans' 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 DurbinSenators voice support for Iran protesters but stop short of taking action GOP divided over impeachment trial strategy Democratic senators introduce bill to push ICE to stop 'overuse' of solitary confinement 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 SchiffFive things to know about Tuesday's impeachment hearings Nunes complains Democrats adding extra time for questioning witnesses Volker says he rejected Biden 'conspiracy theory' pushed by Giuliani 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 SmithOvernight Defense — Presented by Boeing — Pentagon watchdog says Syria withdrawal hurt ISIS fight | Vindman testifies on third day of public hearings | Lawmakers to wrap up defense bill talks this week Lawmakers expect to finish defense policy bill negotiations this week Electric Avenue: The Democrats' crusade to rob from the poor to build electric cars for the rich 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 CheneyOvernight 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 Pompeo: US ending sanctions waiver for site where Iran resumed uranium enrichment 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."