President Trump is considering declaring a national emergency to build his border wall using certain Pentagon funding, and he will make his case publicly on Tuesday night that there's a crisis at the southern border serious enough to justify such a drastic move. There's broad consensus that Trump could declare an emergency, that it would be met with an immediate court challenge, and that the political fallout would be swift and severe. "We will oppose any effort by the president to make himself a king and a tyrant," Rep. Jarrold Nadler (D-N.Y.) said Monday. "The president has no authority to usurp Congress' power of the purse."
"Trump's leading allies on the right, such as Fox News host and presidential confidant Sean Hannity, have spoken encouragingly about the prospect and emboldened Trump in recent days," The Washington Post reports. But Fox News senior judicial analyst Andrew Napolitano sided with Nadler. Trump has no right to do this, Napolitano told Fox Business host Maria Bartiromo on Monday. "That's not me saying no," he added. "The Supreme Court has made it very clear: Even in times of emergency, the president of the United States of America cannot spend money unless it's been authorized by the Congress."
"I think this is a bargaining technique," and Trump, "the master bargainer," believes the Democrats "will blink first," Napolitano said. "But when push comes to shove, this 'declaring an emergency and spending money however I want' is not going to happen."
"The president has valid emergency authorities in a time of a true emergency, but he can't spend money and he can't take property unless the Congress has authorized it — that's directly from the Constitution," Napolitano told Fox News' Martha MacCallum on Monday night. "Otherwise he's bypassing the Congress and he's not a president, he's a prince." Trump "may be biting off more than he can chew here legally and financially," Napolitano added. "He is clearly in dangerous waters constitutionally."