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Think Trump can't use emergency powers to build the border wall? Here's why he could

Franco Ordonez, McClatchy Washington Bureau on

Published in Political News

WASHINGTON -- President Donald Trump intensified threats Thursday to invoke his "emergency powers" to build his border wall if Democrats don't cooperate, saying his lawyers have looked into the matter and "they tell me 100 percent" he can.

Critics have denounced the idea as abusive and unlawful, but experts on presidential powers and immigration enforcement say that Congress has granted Trump, and presidents before him, wide latitude to invoke emergency powers. He also has a sympathetic Supreme Court that has demonstrated willingness to back him in the event of a court challenge.

"Congress has left very broad powers in the hands of whoever is president to declare emergencies for reasons vague, imagined or real," said Michael Waldman, president at the Brennan Center for Justice. "And presidents have a lot of power when they do that."

The Brennan Center for Justice has identified 136 statutory powers that a president can invoke just by signing his name.

Trump first raised the prospects of using his emergency powers on Friday during a news conference in the Rose Garden. The new Democratic chairman of the House Armed Services Committee, Rep. Adam Smith of Washington, later appeared to agree with him, but warned he'd be "wide open to a court challenge."

"Unfortunately, the short answer is yes," Smith said during an interview on ABC's "This Week."

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Trump raised the prospect again on his way to McAllen, Texas, Thursday, where he'll continue his campaign for a wall across the U.S.-Mexico border. He told reporters that he's checked with his lawyers if he can use federal funds without congressional approval. They told him yes, he said.

"I have the absolute right to declare a national emergency," Trump said. "I haven't done it yet. I may do it. If this doesn't work out, probably I will do it. I would almost say definitely."

Trump's bravado on Thursday demonstrated how entrenched the two sides remain on the 20th day of the partial government shutdown that doesn't appear to be ending soon. But some former Trump officials question whether substituting this fight with another drag-out court battle over his presidential authority is in his best interests.

"He's trying to maximize his leverage. That's what any good negotiator does," said one former Trump administration official. "The question is it a really feasible solution. ... There will be a lawsuit filed 30 minutes after he signs."

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