What to Know in Washington: Trump to Invoke Power to Build Wall

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President Donald Trump is turning to an expansive use of presidential power to build his promised border wall, shifting the fight over funding to uncertain ground in the federal courts rather than risking another politically damaging government shutdown.

Trump plans to unilaterally shift about $7 billion in federal resources to construct physical barriers along the U.S.-Mexico border, a White House official said, a maneuver sure to provoke a legal challenge. The move is expected to come as the president signs a compromise spending package today that includes $1.375 billion for border fencing, bringing the total to about $8 billion.

He will invoke an emergency declaration to redirect some of the additional money and ordinary executive authority to tap other funds, all of which has been approved by Congress for other purposes, the official said. The official, who asked not to be identified because the decision hadn’t been announced, wouldn’t describe the funding sources Trump plans to use.

The gambit is a tacit admission that he was unable to persuade lawmakers of the political imperative of his signature campaign promise despite an eight-week standoff that included a 35-day partial government shutdown, the nation’s longest. It leaves the accomplishment of a key goal to the discretion of a federal judiciary he has frequently disparaged.

Trump will deliver remarks on national security and the “humanitarian crisis on our southern border” in the Rose Garden at 10 a.m., the White House said. The president will depart for Palm Beach, Fla. for a weekend stay at 4 p.m.

Read the latest ahead of today’s announcement from Margaret Talev and Justin Sink.

Photo by Chip Somodevilla/Getty Images
Trump speaks during a cabinet meeting in the Cabinet Room at the White House on Tuesday

Reactions: Republicans had been signaling for weeks that they hoped to avoid an emergency declaration. The move risks dividing the GOP, faces potential messy floor votes and will certainly draw a court challenge from Democrats.

“I indicated to him I’m going to support the national emergency declaration,” Senate Majority Leader Mitch McConnell (R-Ky.) said on the Senate floor.

It’s “a bad idea,” said Sen. Marco Rubio (R-Fla.). “It raises real constitutional questions.”

Some Republicans, including Rubio, said they may support a legislative move to block Trump from using those funds. If a majority in both chambers votes to disapprove, Trump could veto the disapproval resolution. The chances of a veto override, requiring two-thirds of each chamber, are remote, particularly with McConnell backing the president. Read more from Steven T. Dennis and Erik Wasson.

Legal Challenge: Opponents are lining up to block the president’s plan. Should a court ever consider the merits of the president’s decision to invoke his presidential powers, Trump may not like what they find since there is little evidence of a crisis at the border that would be fixed by a billion-dollar barricade. The decision is fraught with risk, according to Sam Berger, vice president for the Center for American Progress. “It’s hard to imagine a more clearly illegal action by the president than this,” said Berger. “He asked for the funds and didn’t get them.”

Declaring a national emergency may trigger litigation in federal courts across the country. Kartikay Mehrotra and Andrew Harris look at potential challenges.

Coming Up on the Hill

Green New Deal: McConnell could bring his Green New Deal resolution to the floor when Congress returns from a weeklong recess Feb. 25, McConnell aides said. The aides added, however, that the bill could compete with other pending matters, including a confirmation vote on Andrew Wheeler to head the EPA, Dean Scott reports.

Republicans are embracing Democrats’ sweeping plan to avert climate change, but not because they like it. They think they can use it to cast Democrats as extreme, take back seats in Congress and possibly keep the White House in 2020. Backers of the plan, which include several of the declared Democratic presidential candidates, counter that Republicans who have ignored the issue of climate change are the ones out of touch. Ari Natter has more on the state of play on the effort.

Wheeler Nominations Vote Set: Meanwhile, McConnell teed up a Senate confirmation vote in the coming weeks for Wheeler, Trump’s pick for the next EPA administrator, Scott reports. The procedural move by the majority leader is the first step toward floor confirmation following the Feb. 5 party-line vote by the Senate Environment and Public Works Committee to advance Wheeler’s nomination. Wheeler has served as the EPA’s acting chief since last summer, when he was tapped for the position following the resignation of EPA Administrator Scott Pruitt. He was previously confirmed by the Senate as the agency’s deputy administrator.

McConnell filed for cloture on several other Trump nominees, including Eric Miller to be a judge on the U.S. Court of Appeals for the Ninth Circuit and Michael Desmond to be chief counsel for the IRS and assistant general counsel for the Treasury Department.

Abortion Survivor Bill: McConnell also filed for cloture yesterday on the motion to proceed to S. 311, under which doctors could be criminally charged and subject to civil liability if they don’t provide medical care to a child that survives an abortion procedure. Sen. Ben Sasse (R-Neb.) sponsored the bill and a similar bill. An attempt to advance the legislation by unanimous consent was blocked. House Republicans have sought unanimous consent to consider that chamber’s version of the legislation. For more on the bills, see the BGOV Closer Look by Danielle Parnass and Adam Schank.

Saudi Sanctions: Senate Foreign Relations Chairman Jim Risch (R-Idaho) in a letter to Secretary of State Mike Pompeo is seeking details of any Magnitsky Act sanctions related to the murder of journalist Jamal Khashoggi last year by Saudi officials in the Saudi consulate in Istanbul, Ben Livesey reports.

Money & Politics

Starbucks Protests: The map of Starbucks locations in the U.S. closely follows the nation’s electoral landscape and that could cause headaches for the coffee company if former CEO Howard Schultz runs for president.

The possibility of an independent presidential bid by Schultz has triggered a vigorous backlash among Democrats, who argue his candidacy could split the opposition to Trump and help ensure his re-election. It just so happens that those Democrats are most heavily concentrated in the urban areas and coastal states where Starbucks does the bulk of its business. Read more from John McCormick and Leslie Patton.

Iowa Check-In: The Democratic presidential primary has been dominated by debates over wealth and taxes, driven by proposals such as Sen. Elizabeth Warren’s (D-Mass.) plan to levy a 3 percent annual wealth tax on billionaires. In the first-in-the-nation caucus state of Iowa that’s bound to matter—for one man more than anybody else. Harry Stine, the founder of Stine Seed Co., is Iowa’s only billionaire, with an estimated fortune of $1.4 billion, according to the Bloomberg Billionaires Index, a ranking of the world’s wealthiest people. Joshua Green talked to Stine to see what he thinks about a wealth tax. Read more.

Presidential Debate Invites: Democrats plan to reward presidential candidates who don’t poll well if they have grassroots fundraising support, giving them a spot on the stage for the party’s first debates if they can show they have 65,000 donors or more. The party is prepared to include as many as 20 candidates in its first two presidential primary debates, in June and July, the Democratic National Committee announced yesterday. Candidates with at least 1 percent support in three major national or early-state polls will als o be invited to participate.

“I am committed to running an open and transparent primary process,” DNC Chairman Tom Perez said in a statement. The party’s debates present an “unprecedented opportunity for candidates and voters to get to know each other,” he said. Read more from Jennifer Epstein.

The Costs of Trump’s Political Success: When Trump took office, his critics feared that he would exploit his new position for the benefit of his family business. And while some properties of the Trump Organization —- most notably its hotel in Washington — have prospered, other enterprises have languished or failed. Yesterday the company announced that it had scrapped ambitious plans to expand its hotel business, the latest disappointment for a company that has experienced numerous setbacks since Trump moved into the White House. Execu tives blamed politics. Read more from Shahien Nasiripour.

T-Mobile With Sprint Lobbying: For months, an anonymous group has boldly criticized the proposed purchase by T-Mobile of Sprint, raising what the telecom companies say are spurious national-security concerns: that the resulting company would use equipment from Huawei Technologies and ZTE, the Chinese manufacturers whose telecom gear the U.S. may seek to ban from its networks.

The group calls itself Protect America’s Wireless. It makes no secret where it stands on the $26.5 billion merger, and has enlisted a now-retired chairman of the House Intelligence Committee, an ex-aide to former President George W. Bush and a former State Department official to help press its cybersecurity concerns. And when it comes to saying who’s running the campaign and who’s financing it, Protect America’s Wireless refuses to disclose donors or backers — an increasingly common feature of t he Washington influence game. Read more from Ben Brody and Olga Kharif.

What Else to Know

U.S.-China Talks ‘Productive’: Treasury Secretary Steven Mnuchin sounded a positive note today as U.S.-China trade talks drew to a close in Beijing, where both sides tried to reach a deal that would avert a tariff increase on Chinese goods by March 1. “Productive meetings with China’s Vice Premier Liu He and @USTradeRep Amb. Lighthizer,” Mnuchin said in tweet, without giving further details. Mnuchin and U.S. Trade Representative Robert Lighthizer also planned to meet Chinese President Xi Jinping. It was unclear when or if a s tatement would be released. Read more.

Supreme Court Considers Census Question: The U.S. Supreme Court, which has shied away from high-profile cases in recent months, is on the brink of diving into a politically divisive clash over the 2020 census. The justices could agree as early as today to consider letting the Trump administration add a question about citizenship to the census, a step Democrats say would reduce participation, particularly by Hispanic households. The case would be Trump’s biggest Supreme Court showdown since the court upheld his travel ban last year.

Although the court has tried to sidestep controversy in Justice Brett Kavanaugh’s first term, the census case may be unavoidable. A judge barred the citizenship question, and the Census Bureau says it must start printing questionnaires by June. The only way for the Supreme Court to have the final word is to hear the administration’s appeal on an expedited basis. Read more from Greg Stohr.

Sotomayor and Gorsuch Agree to Disagree: Justice Sonia Sotomayor pointed to her chummy relationship with Justice Neil Gorsuch as proof that the U.S. Supreme Court can be an example of how to “disagree agreeably.” Sotomayor, who was nominated by Barack Obama, and Gorsuch, who was Trump’s first high court appointment, sit next to each other at oral arguments.

Observers note how the two are constantly laughing on the bench together, Sotomayor said at a Library of Congress event honoring Supreme Court Fellows. “We’ve already disagreed a lot,” Sotomayor said, noting that “he’s a lovely person” and that they’ve agreed to “disagree agreeably.” Read more from Kimberly Strawbridge Robinson.

‘Catch and Return’ Draws Suit: The Trump administration was sued over its “catch and return” policy that’s forcing Central American asylum seekers to wait in Mexico while their applications for entry to the U.S. are pending. A group of immigrants’ rights defenders, including the American Civil Liberties Union, filed a complaint yesterday in San Francisco federal court to block the U.S. Department of Homeland Security’s policy. Read more from Edvard Pettersson.

Corporate Scrutiny

Amazon’s Virginia Tax Breaks: Amazon walked away from billions of dollars of public subsidies when it announced yesterday it was abandoning plans for an office complex in New York. But it can still qualify for federal tax breaks intended to help distressed communities by building a new Virginia data center in America’s wealthiest county.

On a densely wooded field near Dulles International Airport in Loudoun County, about 30 miles west of Washington, the company and its development partners are preparing to build a facility for its rapidly growing Amazon Web Services cloud-storage business. AWS went into contract on the 107-acre property last year, after top Amazon executives held at least two meetings with Virginia Governor Ralph Northam, who subsequently selected the area as a “qualified opportunity zone.” That designation will entitle Amazon and its partners to claim millions of dollars in federal tax breaks. Read more from David Kocieniewski.

Facebook Privacy Pact: 
Facebook is in talks with U.S. regulators over alleged privacy violations that could force the social-media giant to pay billions of dollars in a record-breaking settlement, according to two people familiar with the matter. The Federal Trade Commission’s consumer-protection staff and the company are in discussions that could lead to a resolution of the agency’s investigation into whether Facebook violated a 2011 settlement with the FTC, said the people, who declined to be identified because the matter is confidential. Read more from David McLaughlin and Ben Brody.

Movers and Shakeups

Trump announced his intention to nominate Brian McGuire to be a deputy undersecretary of the treasury for legislative affairs. McGuire is currently counselor to the treasury secretary for legislative affairs and served as chief of staff to McConnell, the White House said in a statement.

Trump also tapped Department of Homeland Security Chief of Staff Chad Wolf to be the department’s undersecretary for strategy, policy and plans.

Wolf, who first started working for the TSA after the Sept. 11 attacks, came under fire after coming back to serve as deputy chief of staff in 2017, after lobbying for Wexler|Walker the year before on behalf of Analogic Corp, which makes airport luggage screening technology for the agency, Michaela Ross reports.

To contact the reporter on this story: Zachary Sherwood in Washington at zsherwood@bgov.com

To contact the editors responsible for this story: Brandon Lee at blee@bgov.com; Giuseppe Macri at gmacri@bgov.com; Loren Duggan at lduggan@bgov.com

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