House Democrats are weighing a lawsuit if President Donald Trump pulls the trigger on a national emergency declaration to build his border wall, with party leaders eager to stop the president from doing an end-run around Congress.
Speaker Nancy Pelosi declined to lay out exactly how House Democrats would respond to such an explosive move during a Thursday morning press conference. And senior Democratic sources cautioned that lawmakers will wait to see whether Trump actually goes through with his threat to unilaterally move money to build his wall on the southern border.
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But Democrats are considering their options — from issuing a legal challenge to grilling administration officials at hearings for executive overreach. Many Democrats predict their chamber would quickly pass a resolution instructing the House counsel to sue the administration for ignoring the appropriations clause in the Constitution. Congress, after all, has the power of the purse. And Democrats would likely have standing to challenge the administration for usurping their authority for what they view as a phony emergency.
“We’ll challenge him in committee hearings. We’ll challenge him in the courts. And we’ll just continue to challenge him and push back because that’s not the way this should be handled,” said Rep. Pete Aguilar (D-Calif.).
Not on the table at this time: A censure of the president, much less the start of impeachment proceedings. Democrats say their response, whatever it may be, will be measured and fit the crime. They know they’ll be battling the president on oversight issues all year, and they’ll likely save their more aggressive tactics for future fights.
Even if they sue, House Democrats are also likely to hold hearings on the president’s decision. The House Judiciary Committee would likely take the lead on the matter, but the Appropriations Committee and the panel with jurisdiction over the department that ultimately funds the border wall would also likely be involved.
Those could include the House Armed Services Committee, should the money be siphoned from the Pentagon, or the House Transportation Committee, should Trump officials take the money from water projects — one option being floated Thursday.
“We have been hearing it was going to come out of other parts of the [Army] Corps budget,” said Rep. Peter DeFazio (D-Ore.), chairman of the House Transportation Committee. “We are looking into the rumors and we will be prepared.”
Should Democrats file a lawsuit, they’ll have multiple templates to choose from. House Republicans sued the Obama administration 2014 for unilaterally directing the Health and Human Services Department to fund Obamacare subsides for low-income people, which the GOP argued was done without Congress’ permission.
Obama’s signature health care law did not include an explicit appropriation to reimburse insurance companies for the cost of lower premiums stipulated in the bill. And when Republicans took the House in 2010 and refused to appropriate money for the proposal, Obama decided to do it on his own.
Republicans won the battle in court, though the decision was appealed. And former House general counsel Kerry W. Kircher, who led that lawsuit for Republicans, said he expects Democrats could be similarly successful should they challenge Trump for an emergency border wall declaration.
“The decisions were very strong in the House’s favor in that lawsuit,” Kircher said in a Thursday phone interview. “The judge was very resolute that the executive does not get to spend money that Congress has not given it.”
The difference between that case and this situation, however, would be Trump’s use of an emergency declaration. Democrats say their legal challenge would ultimately depend on which statute Trump cites under his justification. Multiple laws give the president the power to move money around to address emergencies or in times of war. The courts would ultimately have to decide whether the border situation constituted an authentic crisis justifying unilateral action.
“It would depend on who you’ve got as a judge,” Kircher said. “But, factually, it seems to me that ‘the emergency’ is driven by the fact that he can’t get his way some other way. ‘They won’t give me the money, so now it’s an emergency.’ So, I’m skeptical” Trump would win.
House Democrats agree. Democratic Rep. Henry Cuellar of Texas told POLITICO Thursday that “I’m from the border, there’s no crisis there.” If Trump felt there was a real crisis, he continued, “why is he not paying the border patrol, CBP officers, ICE agents, everybody on the border, to handle the crisis?”
“Somebody is going to sue,” he vowed.
Rep. Jamie Raskin (D-Md.), a liberal member of the Judiciary Committee, similarly cast doubt on Trump framing the issue as an emergency situation. He predicted that if Trump goes that route to try to save face in the now 20-day shutdown fight, Democrats will agree to reopen the government and take the fight to the courts.
“If it’s an emergency, it’s hard to see why they didn’t try to build the wall for two years when they controlled the House, the Senate and the White House all together,” Raskin said. “Why did it become an emergency just when the Democrats won the House of Representatives?”
During her press conference, however, Pelosi would not tip her hand.
“If and when the president does that you’ll find out how we would react, but I’m not going to that place now,” she said, later adding: “Let’s see what he does.”
Pelosi’s caution on the matter — rather than an outright vow to sue the president — reflects her careful approach to oversight. The longtime Democratic leader has been wary of her caucus overstepping, and the wall is unlikely to be the only matter House Democrats sue the administration over.
House counsel is already gearing up for fights over documents requests and subpoenas of Trump officials as part of their oversight of the executive branch. Those could turn into years-long legal battles if Trump declares executive privilege and refuses to cooperate.
And should Trump go around Congress to build the wall, Democrats will likely add one more to that list.