RACHEL MARTIN, HOST:
President Trump will be speaking from the Rose Garden shortly. He's expected to declare a national emergency to try and secure funding for his long-promised southern border wall. This comes after Congress passed a border security compromise that provides $1.375 billion for new border fencing. This was far short of the $5.7 billion the president had wanted for his wall.
I'm joined in the studio by NPR national security correspondent David Welna. Good morning, David.
DAVID WELNA, BYLINE: Good morning, Rachel.
MARTIN: Is there a definition of what a president can declare a national emergency for?
WELNA: There is not Congress has never said exactly what constitutes a national emergency. The other thing is that Congress has never overturned a national emergency decree even though they theoretically have the power to do so through a joint resolution. But no, this is something that the Congress has provided for presidents.
There are more than 400 statutes that lie dormant until a national emergency is declared, then when it is, they're activated. The president has to say which ones he's going to use, and then he can go ahead and use them. And there's really nothing that Congress can say about it at that point.
MARTIN: We've got NPR White House correspondent Scott Horsley on the line as well. Scott, declaring this national emergency, though, this flies in the face - it directly contradicts what Congress said and how much money they allocated for this. So the national emergency undermines the very bill the president is expected to sign, right?
SCOTT HORSLEY, BYLINE: Well, that's right. The president said all along that he wanted to get the wall funding he saw through the congressional process. But when he was ultimately unsuccessful, they used this emergency declaration as a stopgap measure. Now, that I should say the White House is downplaying just what a reach this is, but obviously there are congressional critics, certainly Democrats but even some Republicans who do see this as the president overstepping his constitutional authority.
MARTIN: And and setting some kind of precedent that Republicans wouldn't necessarily like if the shoe was on the other foot, right? If a Democratic president comes to power, said president could then declare a state of emergency for any kind of liberal agenda item - climate change or gun control.
HORSLEY: That is the argument that the opponents of this move are making. The White House might phrase it differently, and ultimately, the courts will have a chance to weigh in I suspect.
MARTIN: David, President Trump still has to find this money from somewhere. It doesn't just magically appear if he declares a national emergency.
MARTIN: Where's it going to come from?
WELNA: Well, White House officials say it will come from three sources. Two of them are not subject to really a national emergency decree. He could have used them in any case. One of them is $600 million from the U.S. Treasury from drug forfeiture seizures. Another one is from the Pentagon's drug interdiction programs. That's $2 1/2 billion. He could reprogram that money without declaring a national emergency.
The biggest chunk of money is going to come from military construction programs, and that is an authority that he's invoking through decreeing a national emergency. That's $3 1/2 billion. You add that all up and fold in the money that Congress is offering for the border, that comes to be about $8 billion. That's considerably more than the $5.7 billion that he had been holding out for.
MARTIN: Right. So I guess, Scott, the rationale there is the president thinks, if I'm going to declare a national emergency, I'm - I might as well, you know, swing for the fences.
HORSLEY: I don't think he's really going any bigger though than the 6.7 that he'd been asking for or the 200 that was supposed to...
MARTIN: The 5.7.
HORSLEY: Excuse me, $5.7 billion that he was asking for which was supposed to build about 230-plus miles of border barrier. I don't think they're moving the goalpost on how much fence they want to build. I think they just want to have some wiggle room with these various accounts, and that's why they've identified some 8 billion and change in the couch cushions over at the Defense Department that they can tap into.
MARTIN: Is this going to go to the court, Scott Horsley?
HORSLEY: Almost surely. We have had a number of members of Congress who've talked about that. We've also had the attorney general of California who delivered the Spanish-language response to the president's State of the Union address. And in that response, Xavier Becerra made no secret the fact that he was ready to go into court just as soon as the president took this action. And, of course, if he does so, that would be a case filed in Trump's favorite federal circuit, the 9th Circuit.
WELNA: And a question that that raises is, what would be the legal standing of the California attorney general or of members of Congress to challenge this national emergency decree? They have to show that they are somehow being harmed by what's being done - personally harmed.
And there's thinking that maybe Congress would end up joining a third party lawsuit, for example, somebody on the border whose land is being expropriated by the government to build a wall, might challenge that in court. And Congress could join such a suit. But there is a question about, what would be the legal standing of either the attorney general or Congress to challenge this?
MARTIN: Critics of this have pointed out to the exceptional nature of it, that it's essentially an end run around Congress. Congress said, you can have this much money and spend it this way, and the president is seeking a national emergency to counter that. Is that, in and of itself, unprecedented, David?
WELNA: Well, no; it's not in the sense that other presidents have used national emergency powers. White House officials point out that President George H.W. Bush used the military construction authority in 1990 during the Gulf War, and his son George W. Bush used it in 2001 after the 9/11 attacks. And they say, so this is not really breaking any kind of new precedent.
MARTIN: But they weren't specifically doing so in the face of what Congress had voted for.
WELNA: Exactly. This was not in defiance of Congress. This was in response to a wartime situation. What we have now is a president wanting to build something on the border and saying that there's an emergency there. And you have Congress saying, we don't think that there's that much of an emergency that it deserves the amount of money you sought from us, and we're only going to give you so much. And a White House official this morning said, you know - he said, yes; this does technically go beyond the appropriations bill. He - and he said it's outside the ordinary appropriations process, and that's why the 1976 National Emergencies Act is on the books.
MARTIN: A reminder - you're listening to Special Coverage from NPR News. We're waiting for President Trump to enter the Rose Garden, where he is expected to declare a national emergency in order to acquire the funding he would like in order to build a border wall between the United States and Mexico.
We are joined by Josh Blackman. He's an associate law professor at South Texas College of Law in Houston. Josh, thanks for being here. May I ask you, what do you understand to be the legal threshold for a president to declare a national emergency?
JOSH BLACKMAN: Congress long ago made the threshold quite low. And in fact, since 1991, Congress has enacted a statute that allows the secretary of defense to, quote, "construct fences" along the international border. So we've had laws on the books for nearly three decades that give the president the power to move money around and other statutes who allow him to construct roads and fences near the border. The problem is not what Congress did today. The problem what Congress did in the past - and they gave, basically, President Trump a lot of authority, which he seems now planning to use, and there are not many strings attached to that authority.
MARTIN: So then what would be your reading of future lawsuits if House Democrats decide that they're going to fight this in the courts? I mean, do they have a case?
BLACKMAN: The easiest way for House Democrats to stop this is by passing the resolution and then overriding the president's veto. If they fail to do it, I think it's going to be difficult to tell a court, well, we couldn't do the democratic process, so we'll have the courts try and stop it. I think the far more likely plaintiff to challenge this will be property owners whose land will be seized by eminent domain or perhaps the state of California, which does own some of the land near the border. I think either of these plaintiffs would be much better in the House of Representatives.
MARTIN: I want to bring in Scott Horsley again, a White House correspondent who can look at this through a political lens, because there are those who would argue that this is not a national emergency, but it is a political emergency for President Trump. Can you...
HORSLEY: That's right. I mean, building this wall was a promise that Trump made repeatedly throughout the 2016 campaign. Of course, at the time, he always said that Mexico was going to pay for it. Mexico's been very clear; they're not going to pay for it. He didn't really work very hard during the first two years, when he had Republican majorities in both the House and Senate, to demand that they fund the border wall until - right up until just before Christmas, when he kind of surprised everyone, including his own GOP colleagues, and said he wouldn't sign the spending bill that didn't include what he perceived as adequate wall funding. And we had a 35-day government shutdown.
Now, throughout that period, the president has gone on the road; he's campaigned in El Paso; he's campaigned in McAllen; he's made this a focus of his State of the Union speech; he delivered a primetime speech from the Oval Office to try to sell the American people on the notion that there is either a security crisis or a humanitarian crisis on the border that warrants spending billions of dollars to build at least a portion of the wall, some 200-plus miles of wall. And, you know, he hasn't managed to do that.
We've just had a congressional committee now that spent the last three weeks trying to work up a compromise. They did. And they basically came in with the same number they'd had all along. So he hasn't been able to make the sale to the broad swath of the American people. What he's really doing is playing to that narrower portion of the electorate for whom this wall is an important promise that he wants to deliver on - or at least he wants to be seen doing everything in his power to deliver on.
MARTIN: Right. I mean, now he gets to say - even though he didn't seal the deal on a congressional piece of legislation, he gets to say, I'm fighting Congress. He gets to tell his base that, look at those inept guys who don't really know what's going on; I'm standing up to them. And that works for him, at least...
HORSLEY: Well, it...
MARTIN: ...With a margin of his supporters.
HORSLEY: It does help him with his base, although I'm not sure he really needs a lot of help with his base. He's had, you know, very robust support from his base all along. They haven't really wavered very much. And it's probably costing him with independent voters and certainly Democrats, who have no love for this president anyway. What we saw during the period of the government shutdown - the 35 days, the five weeks when portions of government were shut down, and federal employees were either furloughed or work - or forced to work without pay - was the president's approval rating went down rather dramatically.
HORSLEY: And then when they reopened the federal government. And we had a sort of return to normalcy for the last three weeks accompanied by some, also, positive economic news. The president's approval rating went back up. So going into the breach again like this will certainly be catnip to Trump's most hardcore supporters. But I suspect he may pay a price with the broader electorate.
MARTIN: Yeah. David.
WELNA: You know, and the urgency of building a wall on the border could be questioned from the fact that, last year, Congress gave the Department of Homeland Security $1.375 billion for putting up barriers along the border.
MARTIN: The same amount they're offering up.
WELNA: They are only breaking ground this month on using that money. And so making the argument that you need several times that much money may be a hard sell.
MARTIN: What are we hearing from law enforcement around the border, David? I mean, do - understanding that the border is a long, long place (laughter).
MARTIN: But when you talk to people who are there policing it on a day-to-day basis, do they say they need more physical barrier?
WELNA: Well, I talked to Border Patrol agents along the border near Tijuana, Mexico, and San Diego. Those agents said, really, it's business as usual here. Really, we can handle what's going on. I was asking them about the presence of U.S. Marines who were some miles removed from the border, how much they needed them there. And they said, we're fine. We're getting along fine. I think maybe they were trying to also reassure me that that they know how to do their jobs. But in terms of there being a crisis, you don't get that sense talking to these people on the border.
HORSLEY: And, David, as you know, there's already substantial wall in places like San Diego, in places like El Paso...
HORSLEY: ...In those more densely populated border cities where Congress, in the past, has felt like a wall was valuable. About between 600 and 700 mile of fencing already exists. And what the Democrats would say is we built the fencing where it made sense, and we didn't build it beyond that. And now the president's trying to build it beyond that.
MARTIN: I mean, Scott Horsley, this is another illustration of how this president is taking our entire country into places we haven't been before. I mean, it is - there - norms are things that - in the Trump administration, I think it's fair to say those are bendable. They're not hard and fast. And this is another example of that. This may not be how presidents have typically used declarations of national emergency. But here we are.
HORSLEY: That's right. And again, I mean, if this were genuinely an emergency, why didn't the president do this back just before Christmas, I mean, if there was really that level of urgency?
MARTIN: Right. We have got NPR congressional correspondent Scott Detrow in the studio with us, as well. Scott, what are you hearing from Democrats about how they're going to going to respond to this?
SCOTT DETROW, BYLINE: Democrats are very upset about this. They think this is an unconstitutional power grab, to only mildly paraphrase the statement that came out last night from House Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer. I think we can expect them to use this legislative approach that hasn't really been tried before, where Congress can, as we've been talking about, try to override a presidential emergency declaration. Given the fact that Democrats have a large majority in the House of Representatives, I think it's safe to assume that if this happens, it would pass in the House and go to the Senate. Now, usually, Majority Leader Mitch McConnell can take a piece of legislation that would give him an uncomfortable vote and just never hold a vote on it.
DETROW: That's usually the approach. But under the rules of this, he would have to hold a vote. And our understanding is that this is not something that would be subject to cloture, where you need 60 votes to go forward. Only a handful of Republicans would need to vote in favor of this for it to pass and go to the president's desk.
MARTIN: Are there a handful now who don't like it?
DETROW: Well, there seem to be. That is a good question because right now - I'll say this - right now there is a lot of Senate Republican skepticism about this move. But over the past two years, we can we can bring up countless examples where there's been a lot of Republican pushback. But then it comes to the vote, and they end up siding with the president. So that's certainly one of the biggest things to watch over the next few weeks - is, is this frustration from Republicans, in terms of whether or not this is presidential overreach but also thinking tactically down the line - could a future Democratic president do whatever she or he wants to declare a national emergency to get Democratic policies in place? There's a real concern from Senate Republicans about this.
MARTIN: Right. And just a reminder - you're listening to Special Coverage from NPR. We are awaiting President Trump. He is expected in the next minute or so to come into the Rose Garden. This is where he is expected to announce a state of emergency - a national emergency in order to procure the funding that he wants in order to build a border wall at the U.S.-Mexico border. NPR White House correspondent Scott Horsley. Scott, do we know if the president - I'm putting you on the spot here. Do we know if he's signed the compromise legislation out of the Congress yet?
HORSLEY: No, I don't think it's been delivered to the White House yet. They expect that legislation to come to the White House sometime later today. And the president has said he will sign it. He sent that message via Senate Republican Leader Mitch McConnell yesterday. Of course, they better get it signed by the end of the day because this is - the clock is ticking. And we would have another...
HORSLEY: ...Albeit, you know, just momentary government shutdown if it doesn't get to his desk before - and signed by midnight.
MARTIN: Well, the optics on this aren't great if he hasn't signed it - right? - because Mitch McConnell himself said this is going to happen. The president will sign it. He's going to announce this national emergency, but at the same time, he's going to sign our bill.
DETROW: Yeah, I think that was a move that Mitch McConnell felt he had to make yesterday because Senate Republicans have felt repeatedly burned by President Trump throughout this process, going back to December, when they passed that spending bill that did not include the war funding he wanted on the premise that the president would sign that bill. He, of course, reversed course. We had a month-long shutdown. And as the week went on, and as Trump wasn't making a clear statement on whether or not he would sign this latest bill, there was a lot of uncertainty from Senate Republicans.
So McConnell went on the floor before the votes, said the president says he will sign this. And it seems like this national emergency declaration was the cost that Senate Republicans who don't really want to see that happen had to pay in order to get the certainty and avoid another government shutdown.
MARTIN: But can I just ask here...
MARTIN: ...What difference - thank you, Scott. What difference does Congress allocating $1.375 billion make at all if the president is now declaring a national emergency? He could assign any number to the figure that he would solicit from the Treasury Department or the Pentagon.
DETROW: I think that's a great question. And I think that the reason that he's doing this is that he feels - I'm not speaking for the president, but based on the broader political trends that we've seen over the last month over this fight - he has felt repeatedly frustrated that the money that he wants in order to both accomplish a goal and also save political face simply is not available. You saw this conference committee including Republicans and Democrats come out with a number that was smaller than the amount of money he would have initially gotten. And it was clear that no more money was available on Capitol Hill from a Republican Senate and a Democratic House.
MARTIN: David Welna.
WELNA: But this upsets the whole order of things in Washington. The president proposes and the Congress disposes, and the Congress holds the purse strings. So we're in uncharted territory.
MARTIN: Right. President Trump is now - he's exited the Oval Office. He is now approaching the podium in the Rose Garden.
(SOUNDBITE OF SPEECH)
MARTIN: We continue our Special Coverage from NPR News on President Trump's announcement of the national emergency. I'm joined by NPR White House correspondent Scott Horsley, NPR national security correspondent David Welna and NPR congressional correspondent Scott Detrow. Scott Horsley at the White House, I want to start with you. What struck you by listening - after listening to the president's remarks there?
DETROW: Well, what struck me is just what a rambling and disorganized presentation this was by the president, and that's sort of indicative of the way they have approached this, quote, unquote, "emergency" all along. It took the president almost five minutes to get to the emergency when he came out in the Rose Garden this afternoon - this morning, rather. And, you know, that just shows the lack of urgency that's going on here. He spent the first five minutes of his speech talking about trade talks with China and growing trade with the U.K. When he finally got around to talking about the purported emergency, he, as he often does, had some real whoppers. He was accurate about the number of drug overdose deaths we had in 2017, not last year.
But it's not Democrats who insist that those drugs are mostly coming through ports of entry, it's the Drug Enforcement Administration. That's - the federal government's own professionals say that's where the majority those drugs - the vast majority of those drugs come through. He again mischaracterized the crime record in El Paso. Just as he did when he was there earlier in the week to make - and during his State of the Union speech - to try to make a case that a decade-old border fence in El Paso had cut down on crime in that city. In fact, violent crime had dropped sharply before the fence was built and actually increased slightly after the fence was built.
So this is why the president has had so much trouble convincing the American people and Congress that some state of emergency exists that warrants spending these billions of dollars. His facts are wrong. His presentation is meandering. This is not going to help him convince independent voters who are on the fence here.
MARTIN: We actually have a clip of the president. This is where he is referring to how drugs get into this country and what he believes is an accurate characterization of that. Let's listen.
(SOUNDBITE OF SPEECH)
PRESIDENT DONALD TRUMP: But one of the things I said I have to do and I want to do is border security because we have tremendous amounts of drugs flowing into our country, much of it coming from the southern border. When you look and when you listen to politicians, in particular certain Democrats, they say it all comes through the port of entry. It's wrong. It's wrong. It's just a lie. It's all a lie.
HORSLEY: Somebody's lying, and it's not the Democrats on this one.
MARTIN: Right. You mentioned the stats. I'm going to have - David Welna has actually got them pulled up. I want to have you read those.
WELNA: Yes. In fact, these are statistics that come from the U.S. Customs and Border Protection service. And they - these are statistics about drugs that are seized coming across the border. They say that 90 percent of heroin, 88 percent of cocaine, 87 percent of methamphetamines and 80 percent of fentanyl in the first 11 months of last year was caught trying to be smuggled at legal crossing points. So I guess that the president is saying that his own Customs and Border Protection is lying about this if he's to be believed.
MARTIN: NPR's Scott Detrow, you cover Congress. How did those - how did that message from the president sit with Republicans and Democrats do you think?
DETROW: You know, probably not well. Here's the political reality. President Trump made a decision to pick a high-profile fight and force a government shutdown over this issue of the border wall. He essentially caved to Democrats a few weeks ago. Their top demand was reopen the government and then we'll negotiate. So he agreed to reopen the government. They negotiated, and he still didn't get what he wanted. So this was, in effect, a way to save face in a sense and say, I'm still getting my priority across. I'm still trying to build this wall. It was notable to me that he pointed out this was a campaign promise, but I had many other campaign promises as well.
MARTIN: Right, almost trying to diminish the significance of the build-the-wall promise.
DETROW: Right. And, you know, I covered his 2016 campaign. I went to a whole lot of rallies. I can't think of another promise that was the chant at every single rally throughout 2016. Certainly lock her up was the chant at a lot of rallies as well, but this was a focal point of President Trump's bid for the White House. And he would always say Mexico will pay for the wall. We are going to build a wall.
MARTIN: David Welna, he's got to get this money from somewhere. We had been talking about that earlier. Can you remind us where the president thinks he's getting the remainder of these funds?
WELNA: Three different sources that White House officials say. One is asset forfeiture seizures from the Treasury Department, about $600 million, another $2 1/2 billion from the Pentagon's counter drug programs. Both of those pots of money he did not need to declare a national emergency to get. But the third pot of money, $3 1/2 billion from military construction projects, that's money that was appropriated for very specific things around the country at military bases. He does need to have a national emergency decree to to use that money. Now, that money is about a third of the money that was allocated for military construction in FY 2019. So it's a big chunk.
MARTIN: NPR's Scott Horsley at the White House, I'll finish with you. Where does this go from here? Some lawsuits potentially.
HORSLEY: I think that we are undoubtedly looking at legal challenges. We may be looking at a political challenge, although as our - we've handicapped already, there are probably not the votes to override a presidential veto here. But yes, we are definitely looking at a court fight.
MARTIN: You've been listening to Special Coverage as President Trump announces his declaration of a national emergency to secure as much as $6 billion to build a wall at the U.S.-Mexico border. Transcript provided by NPR, Copyright NPR.