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Trump opts against declaring national border emergency — for now

President has yet to rule out the move if shutdown talks stall, White House aides say

Senate Minority Leader Charles E. Schumer, D-N.Y., and Speaker Nancy Pelosi, D-Calif., responded to President Donald Trump's Oval Office address. (Tom Williams/CQ Roll Call)
Senate Minority Leader Charles E. Schumer, D-N.Y., and Speaker Nancy Pelosi, D-Calif., responded to President Donald Trump's Oval Office address. (Tom Williams/CQ Roll Call)

President Donald Trump opted against using his first Oval Office prime-time address to declare a national emergency at the southern border, instead labeling the situation a “crisis” in an attempt to get Democrats to grant his demand for a wall and end the partial government shutdown.

The president delivered his plea to lawmakers to pass legislation to address the U.S.-Mexico border by repeating his hard-line rhetoric that the area is a transit route for hordes of migrants making illegal crossings, dangerous criminals, lethal narcotics and human traffickers. But he did not appear to dangle any olive branches toward Democrats or say anything that might attract enough Democratic votes to pass a bill with $5.7 billion for the barrier and end the shutdown.

Trump, seated behind the Resolute Desk, told Americans he was addressing them because of a “growing humanitarian and security crisis at our southern border,” saying “thousands of illegal immigrants” enter the country each year.

He called illegal immigration a “tremendous problem,” saying high levels of “meth, heroin, cocaine and fentanyl” are being moved into the United States across the southern border.

Trump’s border wall address vs. Democrats’ response

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“Thousands” of Americans, he contended, have been killed by illegal migrants and “thousands more will be lost if we don’t act right now,” Trump said, calling the situation a “crisis of the heart and a crisis of the soul.”

The president touted a plan to fund his border wall and also finance other border security and migrant-detention needs his team and senior congressional aides agreed to over the weekend. He called it a commonsense approach, but it still lacks any Democratic lawmaker support.

“Democrats in Congress have refused to acknowledge the crisis,” the president said. “The federal government remains shut down for one reason, and one reason only: Because Democrats will not fund border security.”

That came almost a month to the day after he told senior Democratic leaders in the Oval Office he would “take the mantle” of a shutdown, though since it started 18 days ago, he has tried shifting blame to the opposition party. 

Democratic leaders responded to Trump’s speech arguing for facts over fear and reiterating their view that the government needs to be immediately reopened.

“Sadly, much of what we have heard from President Trump throughout this senseless shutdown has been full of misinformation and even malice,” said Speaker Nancy Pelosi. “The President has chosen fear. We want to start with the facts.”

The California Democrat outlined several facts in her brief remarks. She noted that on the first day of the 116th Congress last week, House Democrats passed legislation, originally authored by Senate Republicans, that would reopen government, which Trump rejected.

Pelosi also noted that “the women and children at the border are not a security threat, they are a humanitarian challenge” and reiterated that Democrats agree on the need to secure the border, just in a way that honors the country’s values.

“We can build the infrastructure and roads at our ports of entry; we can install new technology to scan cars and trucks for drugs coming into our nation; we can hire the personnel we need to facilitate trade and immigration at the border; and we can fund more innovation to detect unauthorized crossings,” Pelosi said, listing border security measures Democrats would support.

Senate Minority Leader Charles E. Schumer, speaking after Pelosi, reiterated the same theme, saying, “Trump has appealed to fear, not facts. Division, not unity.”

The New York Democrat told the American people that Trump “has shut down the government” because he failed to get Mexico to pay for his “ineffective, unnecessary” border wall or to convince Congress to foot the bill.

“American democracy doesn’t work that way. We don’t govern by temper tantrum,” Schumer said. “No president should pound the table and demand he gets his way or else the government shuts down, hurting millions of Americans who are treated as leverage.”

The “obvious solution,” Schumer said, is to separate the shutdown from the arguments over border security. He again urged Trump to reopen the government while continuing to negotiate with congressional leaders on border security.

“There is no excuse for hurting millions of Americans over a policy difference, Schumer said. “Federal workers are about to miss a paycheck. Some families can’t get a mortgage to buy a new home. Farmers and small businesses won’t get loans they desperately need.”

[‘You’re such a smartass’: Kellyanne Conway, Jim Acosta clash outside West Wing]

The president and Vice President Mike Pence will head to the Capitol around midday Wednesday to rally support among Senate Republicans, and then congressional leaders will return to the White House at 3 p.m. for a fresh round of talks with Trump. On Sunday, Trump said only “the principals” could end the shutdown by negotiating a border security pact.

During his prime-time address, the president said he wants to “get this done” during the meeting about the Wednesday shutdown-ending deal with leadership. But Democrats say serious negotiations to open the shuttered departments and offices cannot begin until Trump signals a willingness to negotiate a lesser amount for his border barrier — and they distrust that what the impulsive executive says in one minute will hold to the next.

He urged Americans to contact their members and urge them to support his border wall, saying he vowed to “protect this country” when he was sworn in two years ago.

Trump decided, in part, against declaring an emergency because “Congress really has failed to do its job” on border security, White House adviser Kellyanne Conway told reporters earlier in the day outside the West Wing. The president did not want to let lawmakers “off the hook yet again,” she said.

But she and other White House officials made clear Tuesday he has yet to rule out doing so eventually.

Gordon Adams, who ran defense and national security budgeting for the Clinton White House, said the president likely opted against declaring a national emergency because it is an open legal question whether four congressional committees — two now run by Democrats — would be required to sign off on him shifting Defense Department dollars to the border wall program, which is under the Department of Homeland Security.

“A national emergency would have brought an endless supply of court fights,” Adams said. “So, a big reason to not do it is, if the authorizers and appropriators on the Hill insist on signing off, what’s the utility of those fights if you can’t get the approvals?”

But, Adams and other experts said, just because the impulsive president opted against the move now doesn’t mean any future frustrations with Democrats during shutdown talks won’t prompt an emergency declaration in a few weeks — or even days.

Democratic and Republican lawmakers in recent days, echoed by legal scholars and former officials like Adams, had predicted Trump’s move would be met by swift legal action challenging its legality.

Any such lawsuit could have included congressional Democrats, just one of many potential legal arenas. Democratic leaders have yet to discuss what their reaction to a national emergency declaration would have been, but a lawsuit was certainly a possibility, House Majority Leader Steny H. Hoyer of Maryland said Tuesday.

Senate Judiciary member Chris Coons of Delaware predicted earlier Tuesday that an emergency declaration would have been met with “a significant and likely successful challenge in court.”

One GOP Judiciary member, Sen. John Cornyn of Texas, on Monday said an emergency declaration would have added a “new elements to this — court hearings and litigation that may carry this on for weeks and months and years,” adding: “To me, injecting a new element in this just makes it more complicated.”

The move Trump decided against might have provided a way out of the shutdown, experts said. One suggested White House and congressional Democratic negotiators might have been able to start serious negotiation toward reopening the shuttered federal agencies.

[Shutdown Day 17: White House, Dems disagree on definition of ‘negotiating’]

Trump could have “declared victory, no matter what happens in the courts,” said Mark Rom, a Georgetown University professor. Democrats could have told “their supporters they stood strong and forced the president’s hand.”

Instead, “he’s ever the showman: He said he could act on his own but Congress must act,” Rom said. “The message is now, ‘If Congress won’t act, I will. So give me the money for my wall if you’re so opposed to me using this authority.’”

Trump’s first Oval Office address made clear the partial shutdown and its 800,000 furloughed government workers will continue with no end in sight.

“This is one of the most unusual shutdowns I’ve ever seen,” Adams said. “Typically, a shutdown sets off a series of intense negotiations to end it. But Schumer and Pelosi aren’t wearing this one, [Senate Majority Leader Mitch] McConnell is nowhere to be found, and Trump doesn’t mind wearing it.”

“Trump doesn’t respond to the incentives and disincentives to end it that previous presidents have,” he added. “He doesn’t seem to have any desire beyond his wall to end it. He just doesn’t give a damn.”

Rom summed up the ongoing standoff this way: “Republicans on the Hill don’t want to bargain because they don’t want to give up something like the ‘Dreamers’ for Trump’s wall. And Democrats are in no mood to give the president even $1 for the wall.”

Lindsey McPherson contributed to this report.

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