‘I think there is going to be a bipartisan effort to take a look at that 1976 law and see if it granted the president too much power…’
(John M. Donnelly, CQ-Roll Call) Democrats would promptly file suit against the Trump administration if the president were to declare a national emergency in order to bankroll a southern border barrier, the new House Armed Services chairman warned Friday.
Trump has not declared such an emergency, which would permit him to redirect billions of federal dollars to pay for his wall. But he threatened at the White House on Friday that it is still an option, even as he agreed to sign legislation that would temporarily reopen the shuttered portions of the U.S. government.
“We really have no choice but to build a powerful wall or steel barrier,” Trump said. “If we don’t get a fair deal from Congress, the government will either shut down on Feb. 15 again or I will use the powers afforded to me under the laws and the Constitution of the United States to address this emergency.”
Trump’s aides have reportedly drafted a declaration that would enable the president to divert billions in military construction and flood-control funds.
“There would immediately be a lawsuit,” said Washington Democrat Adam Smith, in a C-SPAN “Newsmakers” interview to be initially broadcast on Friday. “Taking billions out of the Pentagon’s military construction budget would be a big problem, and there’s bipartisan opposition to it.”
Moving money slated for Army Corps of Engineers’ flood-control programs would likewise be “problematic,” Smith said.
The Armed Services chairman also predicted Congress might reconsider the 1976 National Emergencies Act, which gives the president such sweeping authority to spend money without lawmakers’ assent.
“I think there is going to be a bipartisan effort to take a look at that 1976 law and see if it granted the president too much power,” he said.
Smith also said the committee’s first hearing of the new session on Tuesday will focus on the administration’s justification for deploying nearly 5,000 U.S. troops, about half of them active-duty personnel, to the southern border. The troops are there ostensibly to secure the border against immigrants that the president has labeled a threat.
Speaking to reporters Friday at the White House, Trump said he would agree to a stopgap spending bill to reopen for three weeks the quarter of the government that has been shuttered for 35 days, while negotiations proceed on spending for a border wall.
The National Emergencies Act gives the president virtually open-ended authority to declare an emergency, which in turn empowers him to use any of several other laws to shift money around the federal budget, including from military construction and Army Corps of Engineers programs.
Presidents have used defense money to cover the costs of addressing declared emergencies on many occasions in recent decades, but the sums of money involved were smaller than the president’s proposal to spending at least $5.7 billion in fiscal 2019 as a down payment on a border wall. Past uses of the legal authority have also generally been for projects outside the United States.
Although the president has authority to use the emergency law, his administration might face questions in court about the validity of the emergency and how and why the military would be involved.
Smith said on the “Newsmakers” program that he does not think there is an emergency even under the terms of the 1976 law.
The upcoming House Armed Services hearing will address the deployment of troops on the southern border.
The operation began in October, and the Pentagon has authorized its continuation through at least Sept. 30.
Smith disclosed that one witness at the hearing will be Air Force Gen. Terrence O’Shaughnessy, the commander of U.S. Northern Command, which has responsibility for the Defense Department’s homeland security efforts, including indirect military support for law enforcement.
The committee also wants to hear from a Pentagon civilian who has yet to be determined.
Smith said the border deployment costs a lot of money and diverts troops from training for their primary missions.
He said committee members will be asking: “Why is it necessary to have active-duty troops at the border?”
The panel is also concerned about risks that U.S. troops could be drawn into direct law enforcement activities that are barred by law.
“We want to make sure those lines don’t get blurred and the military is not used for domestic law enforcement,” Smith said.
(Lindsey McPherson contributed to this report.)
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