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With shutdown talks in stalemate, Trump mulls ‘national emergency’ to build his border wall

Legal experts disagree on whether this is even possible, and it would almost certainly be challenged in court.

Sceen shot from Donald Trump's Twitter feed
Sceen shot from Donald Trump's Twitter feed

More than two weeks into a partial government shutdown with no end in sight, President Donald Trump is more inclined than ever to declare a national emergency so that he can bypass congress to build a wall on the U.S.-Mexico border, news reports said on Sunday.

CNN cited a White House official who said the extraordinary step was a real possibility, after hours of failed talks between Vice President Mike Pence and negotiators representing congressional Democrats.

“We can only stay like this for so long,” said the official, who CNN reported had attended two meetings with congressional officials at the White House led by Trump this week.

Congressional and administration officials plan to meet again Sunday, according to the network.

At a White House press conference on Friday, Trump told reporters that he believes he has the authority to re-purpose other federal funds to build the wall, saying “we can call a national emergency because of the security of our country.”

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“I haven’t done it. I may do it,” the president said. “We can call a national emergency and build it very quickly.”

Legal experts disagree whether the president can actually declare a national emergency to build a wall. Harvard Law School Professor Mark Tushnet told NBC News that Trump is “on very solid legal ground” in saying he can.

“The Department of Defense has funds in its account that are not specifically designated for anything. Congress gives them money and says ‘we don’t know what’s going to happen over the next year — here’s $100 billion,'” Tushnet said, guessing at an approximate funding amount.

“My instinct is to say that if he declares a national emergency and uses this pot of unappropriated money for the wall, he’s on very solid legal ground,” he added.

But Yale Law professor Bruce Ackerman wrote in the New York Times on Sunday that the president would be in violation of U.S. law if he were to plow ahead on a border wall without congressional authority.

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“While it is hard to know exactly what the president has in mind, or whether he has any conception about what it would entail, one thing is clear: Not only would such an action be illegal, but if members of the armed forces obeyed his command, they would be committing a federal crime,” Ackerman said in an op-ed in The Times.

Democratic leaders also reject the president’s assertion that he has the power to circumvent Congress, and say they will take the matter to court if necessary.

“The President’s authority in this area is intended for wars and genuine national emergencies,” Evan Hollander, communications director of the House Appropriations Committee, told CNN.

“Asserting this authority to build a wasteful wall is legally dubious and would likely invite a court challenge.”

The impasse showed no sign of being broken on Sunday. Senate Democratic Whip Dick Durbin (D-IL),  who is playing a leading role in the talks, said on Face the Nation that he was not encouraged about the prospects for a quick deal.

“I can’t say that we’re close because the president has made it clear he doesn’t care,” Durbin said .

“He’s prepared to see a shutdown for months and even said years and reaffirmed that before the cameras. It was stunning to hear a president of the United States say that about his own government, a government we elected him to lead. But that is his position.”

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The president’s acting chief of staff Mick Mulvaney was equally pessimistic, and told Meet the Press that if a deal is not reached in the next couple of days, federal workers will not be paid on time.

“If we don’t have an agreement I think by midnight on the 8th, which is Tuesday, then payroll will not go out as originally planned on Friday night,” Mulvaney said.

The partial federal shutdown started on Dec. 22 and has affected some 800,000 federal workers. Democrats and Republicans in Congress have been unable to agree on funding for the president’s border wall, with the White House and his Republican allies demanding more than $5 billion for its construction.

The president tweeted that he and aides would huddle at a strategy session at Camp David on Sunday.

He also sent out a separate tweet of a movie poster-style image with the legend “The Wall is Coming,” in bold, white letters and pinned it to his Twitter page, suggesting a fairly inflexible negotiating stance.

In another fusillade of tweets early Sunday, the president said Democrats only are trying to thwart him.

“The only reason they do not want to build a Wall is that Walls Work!,” Trump wrote. “99% of our illegal Border crossing will end, crime in our Country will go way down and we will save billions of dollars a year!”

The shutdown is the third since President Trump took office in January 2016. On Thursday, Democrats — now in the majority in the House — passed spending bills to reopen the government through Feb. 8, including $1.3 billion in funding for border security.

Senate Majority Leader Mitch McConnell (R-KY) has refused however to bring the measure to the Republican-controlled Senate floor for a vote.

Meanwhile, House Speaker Nancy Pelosi (D-CA) in a statement late Saturday said Democrats will begin passing legislation next week aimed at re-opening government agencies one by one.

They will start, Pelosi said, with the Treasury Department and the Internal Revenue Service, with the tax filing season rapidly approaching, “so that the American people can receive their tax refunds on schedule.

“The certainty of the tax returns of hard-working families should no longer be held hostage to the president’s reckless demands,” she said.

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This post has been updated with quotes from the Sunday talk shows.