President Donald Trump is eyeing a path to avoid another government shutdown where he would reluctantly accept the congressional border-security deal and attempt to tap other funds for his wall.
Trump is likely to grudgingly sign the legislation and then immediately use his executive authority to fund additional border measures, said a person who talked to the president Tuesday and asked not to be identified to discuss private conversations.
“We want to see the final piece of legislation and we’ll make a determination,” White House Press Secretary Sarah Huckabee Sanders told reporters Wednesday. “We actually like to read legislation before we agree with it.”
Continuing partisan fighting over legislation text as it is being written may delay its release and put off voting until Thursday but those hangups aren’t expected to stop the deal from going through, according to another person familiar with the congressional negotiations. Lawmakers hope to release text of the bill late Wednesday night, according to a GOP aide.
Late Tuesday, Trump tweeted that he was getting details of the plan from the lead Republican negotiator, Senator Richard Shelby of Alabama, and suggested he would pair money from the deal with money he would find elsewhere in the federal budget.
“Was just presented the concept and parameters of the Border Security Deal by hard working Senator Richard Shelby. Looking over all aspects knowing that this will be hooked up with lots of money from other sources….” Trump wrote.
The president’s campaign for a wall on the U.S.-Mexico border is entering a new phase after his quest to get $5.7 billion in the agreement to keep the government operating fell far short. A tentative accord reached Monday night provides just $1.375 billion for 55 new miles of fencing in Texas. It’s not clear how Trump arrived at the $23 billion figure.
Debating Details
Republicans want to put an extension to the Violence Against Women Act in the spending bill while Democrats are seeking a full reauthorization bill, according to a Democratic aide familiar with the talks.
Border fencing provisions are still also being debated. Lawmakers left it up to staff to resolve a Democratic push to exclude the National Butterfly Center, a SpaceX launch pad and other areas in Texas from fence construction.
The legislation would have to pass both chambers of Congress and get the president’s signature before midnight Friday to keep the government open.
Congressional Republicans have been pointing Trump to pots of federal money he could tap for his border wall to steer him away from using a politically and legally fraught emergency declaration.
One Senate GOP leader, Roy Blunt of Missouri, said he’s already scouring the federal budget for ways Trump could use available funds for a wall that won’t trigger a power struggle with Congress. So far, he says, he’s found at least one solid prospect: a program to combat drug trafficking that has $800 million left in its account.
“There are a handful of those places, and if we get to the place where it’s time to talk to the president about those I intend to,” Blunt said.
Funding Sources
Other sources of money that have been discussed in varying degrees of seriousness include military construction funds, Army Corps of Engineers projects and money forfeited by convicted criminals.
Any attempt to shift money is likely to trigger a new round of battles.
Senate Minority Leader Chuck Schumer of New York and other Democrats insist that Trump would be barred from making transfers without congressional approval under restrictions in the new deal, and the matter could wind up in court.
“I think that’s the place where it’s likely to go, but I can’t tell you that that’s the course that we’ll follow,” said Senator Dick Durbin of Illinois, the No. 2 Democratic leader.
Emergency Declaration
Republican leaders have been delicately trying to forestall any effort by the president to declare a national emergency to get what he wants, despite weeks of threats. They say they have even warned him that enough Republicans could defect to override any veto of an expected resolution against his action if he does so.
But Senate Majority Leader Mitch McConnell of Kentucky told reporters Tuesday that he wouldn’t be opposed to the president taking lesser action to transfer funds, so long as they pass legal muster.
“I think he ought to feel free to use whatever tools he can legally use to enhance his efforts to secure the border,” McConnell told reporters. “So no, I would not be troubled by that.”
White House Acting Chief of Staff Mick Mulvaney already has made clear he’s looking into options to further aid Trump’s quest for a wall. Under current practice, the chairmen and ranking minority members of each spending panel subcommittee sign off on any reprogramming request.
Gordon Gray, a former Senate Republican budget aide who is a fiscal policy specialist at the policy research organization American Action Forum, said the administration is trying to avoid a legal challenge by scouring previous appropriations bills for extra money rather than boldly asserting it has presidential authority to defy Congress.
‘Wiggle Room’
“In the ordinary course of government appropriations, the legislative and executive branch build in wiggle room,” he said. “It appears that by looking under the seat cushions they are trying to abide by the letter of the law.”
He said that military construction and Army Corps of Engineers funding has been talked about because Congress has already built in some discretion for the executive in those accounts. What is novel with Trump is that he is seeking to use a wide variety of disparate accounts for one wall project. “That’s what makes it seem like a big middle finger to the legislative branch.”
Sam Berger, a specialist on appropriations and administrative law at the Democratic-leaning Center for American Progress, said Congress would have standing to sue the president for tapping those funds for a wall that has nothing to do with protecting the military or disaster mitigation.
Congressional Intent
“Otherwise Trump could simply turn the military into his personal construction company and declare that improving his golf courses was a national emergency. This is not the intent that Congress had for those funds,’’ he said.
The more likely course, Berger said, is using the drug trafficking corridor funds to put up barriers in areas with high levels of drug trafficking.
Already some Republicans are telling Trump to be careful just which programs he taps. Armed Services Committee Chairman Jim Inhofe of Oklahoma said he had warned Trump not to touch military construction funds for the wall, but he could live with using Army Corps funds.
Maine Republican Susan Collins went further, saying that redirecting billions of dollars without approval of Congress “would undermine the appropriations process and be of dubious constitutionality.”
Others are very much on Trump’s side if he tries to re-steer funds to his coveted wall project, a top campaign promise from his 2016 campaign.
Senator Lindsey Graham of South Carolina, a top Trump ally, said he won’t back this week’s bipartisan agreement on border security unless Trump has some budgetary leeway to get more of what he wants. Graham said he wants assurances that Trump can utilize a steel barrier that he has advocated in recent months rather than a concrete structure.
Gray said it is unclear if Congress would challenge Trump, whether it would have legal standing and whether it could prevail. The legislative branch may decide in the future to end some of the reprogramming discretion it has given the executive, however, if lawmakers feel the discretion has been abused.
He said it is more likely that if Trump seizes private land for his wall without congressional authorization he would face legal challenges.
“I don’t know that there is any time you tell a Texas rancher that some of their property is no longer theirs that they would simply accept that,” he said.
