White House: Trump to declare national emergency after Congress passes spending bill

This is a rush transcript from "Your World," February 14, 2019. This copy may not be in its final form and may be updated.

CHARLES PAYNE, HOST: To the last-minute scramble to avoid another shutdown, all eyes on the Senate, where the final vote on the spending bill is currently under way.

It will break the stalemate over border wall funding. And the White House says it will get the president's blessing, then to the legal fight in the offing.

Welcome, everyone. I'm Charles Payne, in for Neil Cavuto.

Why the former border chief under President Barack Obama hopes this president does do more. And former Whitewater prosecutor Robert Ray on if the president legally can do more.

But first to Mike Emanuel on Capitol Hill on the vote that is happening right now, and John Roberts at the White House on the national emergency that is likely to be coming next.

We begin with Mike.

MIKE EMANUEL, SENIOR POLITICAL CORRESPONDENT: Charles, good afternoon.

This is a 15-minute vote, so it should wrap up rather quickly, rather efficiently. The big question all day, of course, was, would President Trump sign this deal? And Senate Majority Leader Mitch McConnell cleared that up last hour.

(BEGIN VIDEO CLIP)

SEN. MITCH MCCONNELL, R-KY., MAJORITY LEADER: I have just had an opportunity to speak with President Trump, and he would, I would say to all my colleagues, has indicated he's prepared to sign the bill. He will also be issuing a national emergency declaration at the same time.

And I have indicated to him that I'm going to prepare -- I'm going to support the national emergency declaration.

(END VIDEO CLIP)

EMANUEL: But that national emergency declaration did not go over well with Senate Democratic Leader Chuck Schumer.

(BEGIN VIDEO CLIP)

SEN. CHUCK SCHUMER, D-N.Y., MINORITY LEADER: There is word the president will declare a national emergency. I hope he won't. That would be a very wrong thing to do.

And Leader Pelosi and I will be responding to that in short order.

(END VIDEO CLIP)

EMANUEL: This bill is more than 1,100 pages' long. And so lawmakers are saying there's plenty to like in it, there's plenty to dislike in it.

Here's North Carolina Senator Thom Tillis:

(BEGIN VIDEO CLIP)

SEN. THOM TILLIS, R-N.C.: I intend to support it today. It's not a vote that I'm going to enjoy. But, sometimes, we have got to do things here to make progress, to compromise and to move on.

We owe it to the American people to keep the government open. We owe it to border security to listen to their recommendations to fund people, technology and infrastructure. This is a step in the right direction.

(END VIDEO CLIP)

EMANUEL: Once the Senate's done, it will get kicked over to the House of Representatives. Speaker Nancy Pelosi says they will have the votes and they can fight about the national emergency another day.

(BEGIN VIDEO CLIP)

REP. NANCY PELOSI, D-CALIF., SPEAKER OF THE HOUSE: The president is doing an end-run around that. It is -- we will review our options. We will be prepared to respond appropriately to it.

I know the Republicans have some unease about it, no matter what they say, because, if the president can declare an emergency on something that he has created as an emergency, an illusion that he wants to convey, just think of what a president with different values can present to the American people.

(END VIDEO CLIP)

EMANUEL: To recap, the Senate voting this hour to prevent another partial government shutdown -- Charles.

PAYNE: Mike, before I let you go, what's your sense on a potential declaration of a national emergency? What do you -- what are you feeling there on the floor?

EMANUEL: Well, bottom line, some lawmakers don't like the idea, because, as Speaker Pelosi says, it's going around Congress. One of the big powers Congress has is the power of the purse.

And so if a president, whoever the president is, does this, going around Congress, Congress loses some of its clout. And so some people are uncomfortable with that. Some Republicans are uncomfortable with that, thinking the next president could be a Joe Biden, could be one of the 25 or so Democrats running against President Trump.

And what if they say climate change is a national emergency, health care is a national emergency? Then Republicans may be against national emergencies, after they were for them, Charles.

PAYNE: Mike Emanuel, thank you very much.

EMANUEL: You bet.

PAYNE: Well, the president promising to declare a national emergency.

John Roberts is at the White House with the very latest -- John.

JOHN ROBERTS, CHIEF WHITE HOUSE CORRESPONDENT: And it was a bit of a surprise this afternoon, Charles, because the last thing we had been told by White House officials was that there was no read on which way the president was going on this bill, that they were still sifting through the 1,159 pages.

There was a lot in it that they didn't like, things like the fact that the National Butterfly Center in Texas just West of McAllen had the authority under this bill to say, you can't build a wall on our property, and DHS was already making preparations to do that.

There's also a provision in it that would allow local officials in four Texas border towns, as well as one census area, to veto the wall if they didn't want it in their area. So the president saw that there was no other choice here, particularly given the amount of money that was in the wall.

He wanted $5.7 billion. He was only getting 1.375 -- that he was going to declare a national emergency.

Sarah Sanders, the press secretary in a statement, saying: "President Trump will sign the government funding bill and, as he has stated before, he will also take other executive action, including a national emergency to ensure we stop the national security and humanitarian crisis at the border. The president is once again delivering on his promise to build the wall, protect the border and secure our great country."

The president does have support from several members of Congress. You heard Mitch McConnell say that he's behind it. Senator Lindsey Graham floated this idea, this exact idea, more than a month ago, where he said the president should take a couple of weeks to try to negotiate a deal, and if he doesn't get what he wants, declare a national emergency.

That is exactly what happened. Jim Jordan from the House Freedom Caucus, introducing a continuing resolution yesterday that would have allowed another week for more negotiation, said the president should declare an emergency.

And the White House knows full well, Charles, that they're going to end up in court on all of this, and that they are prepared to fight this fight.

Now, here's the way they could avoid a court fight, at least at the beginning. The Office of Management and Budget has identified more than $5.7 billion, according to Mick Mulvaney, the chief of staff, that it could put toward, that it can move around together and put to work construction of a border wall.

The first tranche of that money, they think, wouldn't meet a legal challenge. But then each basket of money that they pull from after that sort of increases the chances. The president was looking to get $2.6 billion as of, say, the middle of January. So, if he can get this 1.375, declare an emergency, and get that billion or so that they think that they can get without a legal challenge, then he's most of the way to where he wanted to be, at least for fiscal year 2019.

Then he can fight this fight as of September 30, when fiscal year '20 starts. We will see how it goes. he will probably be enjoined by the ACLU or some other group in a San Francisco or Los Angeles court, something in the Ninth Circuit Court of Appeals, fairly quickly, but it may be that if the initial legal challenge the White House may win.

So we will just have to see how all of this plays out. We're just at the starting gate here, Charles.

PAYNE: John Roberts, thank you very much.

So the question now, of course, is, is a natural emergency the way to go?

Let's ask Mark Morgan, former Border Patrol chief under President Obama.

Mark, President Trump, in this particular case, you think this is the right move?

MARK MORGAN, FORMER BORDER PATROL CHIEF: Absolutely. Congress has failed.

Charles, Congress has failed to do their job. They have left the president with no option. He has to do this to safeguard the security of this country. This bill, with all due respect to the -- to the congressman you had on, this is not a step in the right direction.

John mentioned a couple of the sections in this bill, that it actually goes backwards. And, in essence, I predict very little new barrier is going to be built because of this bill.

PAYNE: Well, even if we went with the announced 55 miles, that's nowhere near what President Trump was asking for. The $5.7 billion certainly was just a down payment ultimately on what many said would be a $25 billion project.

But now it looks like there's no other recourse with the national emergency route. And everyone's saying, hey, this thing has -- this could be a double-edged sword. On one hand, it could take a long time, it could be a legal nightmare.

On the other hand, it opens the door for future Democratic presidents to, in their minds, abuse the system. What would you say to that?

MORGAN: Well, I would say let's just look what we have.

So I have started to read the 1,600 pages of this bill. And John alluded to it. There's two sections there, Charles, that talk about it. There's Section 231 and 232-A. And that's where the 55 miles, the only 55 miles they're giving, but they put so many limitations on that 55 miles, like local governments have to agree, and there's five areas where they can't build a wall or put any funding whatsoever.

That pretty much erases the 55 miles that's included. So we're not going to get probably a single mile of wall there. This is -- this bill is absurd, and the president has no choice but to declare a national emergency.

PAYNE: So, according to the National Emergency Act of 1976, that this would have to maybe adjudicate which programs would ultimately fund this wall, the idea of seizure of property, who could be harmed by this, and who would have the right to sue, and, of course, probably, most importantly, which court would this be argued in.

MORGAN: Yes.

So -- so, Charles, just this week, I stood next to an Angel Family of for - - there were just so many of them there, representing over 4,000 Angel Families that are there, that loved ones have been killed by illegal aliens.

Right there alone to me is a national emergency. Read the indictment of Chapo that just was convicted this week in New York. That should lay out what the cartels do and the devastation in this country and the drugs that are pouring in. And we could go on and on with the facts, which political party wants to discard 100 percent.

And one other thing that I want to talk about this bill that's very important, Section 2 -- it's Section 224. It actually creates a new level of amnesty. If you sponsor a child, this bill tells ICE, you can't do anything to a sponsor. You can't go after a sponsor. You can't go after the family of a sponsor of a child.

That gives them 100 percent amnesty. And we know the majority of sponsors are here illegally. It's amnesty without calling it amnesty.

PAYNE: I do want to remind the viewers that we are looking at Capitol Hill live. They are -- the Senate is voting on this bill as we speak.

And, Mark, you had this job. You held this position under President Obama. Were you ever -- did any Democrats ever come to you for counseling and for questions about this at all?

MORGAN: No.

So, ever since I have broken my silence, I cannot get anyone to talk to me. And, trust me, Charles, I have tried multiple times to get an audience. And they just refuse.

PAYNE: Considering that, two weeks ago, the wall was immoral.

And now, even to your point, even if it's not going to happen, that they publicly said, OK, 55 miles, then is it all politics, that 55 miles couldn't have been a lot more? Was it all about just a political victory for the Democratic Party with this?

MORGAN: Look, this is not easy for me to say, Charles, but yes.

If you look at what's in the bill, getting the 55 miles, and then the limitations they put, they're just going to result in zero being done, I can draw no other conclusion. They have rejected all the experts, what they say they needed -- need to safeguard the southwest border. They have completely rejected.

And they say time and time again it's immoral, ineffective. And the historical data and facts absolutely rejects that. The wall is part of a multilayered strategy. Absolutely works, Charles. And the facts are there. They're rejecting it. This is all identity politics, 100 percent.

And this country is suffering because of that

PAYNE: By the way, Mark, before we let you go, who in the Democratic Party have you tried to reach out to?

MORGAN: So I have tried to reach out to several different committees, where I wanted to say, hey, look, I'm here. I want to talk to you on both sides of the aisle.

I have been met well, very receptive on the Republican side, not the Democratic side. That's a fact.

PAYNE: Mark, thank you very much. Really appreciate it. Thank you so much.

MORGAN: You bet.

PAYNE: Want to go to FOX News CNN Capitol Hill producer Chad Pergram with more on all of this -- Chad.

CHAD PERGRAM, SENIOR CAPITOL HILL PRODUCER: Well, right now, the Senate is taking this final vote on this appropriations bill.

Keep in mind that this is a -- what we call a minibus. It's not an omnibus, but a minibus, where they glom together seven of the appropriations bills that weren't finished for this fiscal year. The seventh, of course, is the Department of Homeland Security.

And looking at this vote right now -- I'm looking at the screen just off to my right here -- there are more than 80 yeses on this bill. That is a big deal, because what that meant is that there were -- there was so much support for this between Republicans and Democrats that the president was about to be abandoned, frankly, by this.

Now, Mitch McConnell, I think it's very important to note that he didn't put this piece of legislation the floor until he got assurances from the president of the United States that he was in fact going to sign it. That was an issue in December.

You might remember that Mitch McConnell, the Senate majority leader, felt that he was burned when they put a bill on the floor to avoid a shutdown for just about five or six weeks, and then the president said, no, I'm not going to sign it.

One of the other issues here -- and we have been hearing about this the past hour here -- is, what is going to be the constitutional issues if the president goes ahead and declares a national emergency?

Now, I'm going to look right here at Article 1, Section 9 of the Constitution. It says, no money shall be drawn from the treasury but in consequence of appropriations made by law.

That's very important, because there are ways in what we call transfer authority and reprogramming where you can go around a little bit, administrations can go around in an individual spending bill and in extreme cases even go between multiple spending bills and say, OK, we're not going to get a blessing from Congress, but we're going to move some of that money around, but you have to get a sign-off there from the leaders on the Appropriations Committees in both the House and the Senate.

One wonders if Democrats would go for that. And that's why this declaration of a national emergency is so important. Here's the other key thing to note.

I asked Nancy Pelosi if the announcement by the president that he was going to sign the bill and the fact that he was declaring a national emergency, would that affect the vote matrix here in the House tonight? And she said, we have the votes.

So it's going to pass in the House of Representatives. We don't think that they're going to be able to pass this alone with just Democratic votes. They're going to need some Republicans to come on board here. If you do the math, Democrats can lose about 18 votes, if everybody is voting on their side.

So we expect a bipartisan vote in the House of Representatives probably later tonight.

PAYNE: Chad, with all the focus on the border wall and the political fighting, I think a lot of people have overlooked the size of this bill, but not Senator Sasse.

We just got a release from his office. He is a no vote on the $300 billion spending bill. He says: "It's a monster. It's $300 billion, 1,100 pages, $270 million per page, and that no senator is even prepared -- pretending to have read the thing, swamp thing."

Any others down there expressing the similar sentiment?

PERGRAM: Absolutely. Absolutely.

I spoke with Rand Paul, the Republican senator from Kentucky. I said, how long do you need to go through this? And he said probably a couple of weeks. And I asked him, I said, well, will you try to hold this up?

Remember, they just had that procedural vote a few minutes ago to break a filibuster. And Senator Paul said, well, I will just vote no.

Senator John Kennedy, Republican from Louisiana, he indicated that he needed about at least a day or so to go through and look for what he called nuggets in the bill.

But, at the end of the day, everybody said, all right, we're just going to go through and do this.

And, Charles, the one thing I want to point out, that, inevitably, in the next couple of days, people are going to be mining and finding those nuggets that are hidden in this bill. That always happens when you do a big bill.

The other thing I should point out it is 1,100 pages, but 1,100 pages across seven appropriations bills. They had already knocked out five of the spending bills for this fiscal year. So you're glomming together those seven.

So, on the outside, that might seem like a really big bill, but if you're doing seven appropriations bills together, 1,100 pages is really not that big.

I just want to look off screen here for a second to check where we are on this vote. We would think that they would close this pretty soon. They're up to a total of 97 members voting, 81-16. And we know that Richard Burr, the Republican senator from North Carolina, he went to North Carolina for the funeral of the late Congressman Walter Jones.

So we might be just waiting for one more person to vote here. But the bottom line is that this bill is going to pass in the Senate sometime in the next five or 10 minutes with an overwhelming vote. And that should probably give the House of Representatives enough air cover to pass this probably with an overwhelming vote later tonight.

PAYNE: Chad, do me a favor, please if you can. Just stay right there for us.

PERGRAM: Of course.

PAYNE: The White House, in the meantime, say that they are very prepared for legal challenges.

So, what could the fallout be from all of this?

With me now, former Whitewater independent counsel Robert Ray.

Robert, everyone's guessing, right, but the overarching theme is that there will be a lot of legal challenges, and it could actually drag this thing out for a long time?

What would the specific challenges be, though?

ROBERT RAY, FORMER INDEPENDENT COUNSEL: It depends who brings them, whether they have standing to challenge the legislation.

I guess it's a good thing that we now have a new attorney general, because the Justice Department obviously will be principally responsible for defending the administration's action in this regard.

But at least some progress has been -- has been made. It looks like we're going to have legislation. It will pass both houses. The president is committed to signing it. He's now indicated he will declare a national emergency. That is a delegation of authority from the Congress.

They passed, as you noted earlier, the National Emergencies Act in 1976. So there's no question that he can act in that area constitutionally. There will be arguments about whether or not what he's done...

PAYNE: A litmus test that -- that for something to actually be a -- quote -- "national emergency."

RAY: Well, that's not really been tested before, has it?

I mean, and there's no guidance in the legislation as to what does or doesn't constitute a national emergency. And, again, I think, as I was just about to suggest, I'm sure that there will be opponents of this who will seek to challenge it on the basis that it's just a pretext to do a -- you know, a go-around, you know, the absence of congressional specific authorization to build the wall.

I think the president, though, has an area where he can act constitutionally. He is able to move certain funds around, some of which I think are not open to question, as is indicated by OMB, some of which would be more likely to be subject to challenge.

Yes, there will be litigation, but that's not an unfamiliar place for this administration to be. It's not frankly a place that's unfamiliar to any administration. And whether those challenges have any real success or merit, of course, remains to be seen.

The concern of courses efforts to try to do things like enjoin...

PAYNE: Right.

(CROSSTALK)

RAY: ... presidential activity. And I imagine that you will -- you will have plaintiffs with the backing of the Democratic Party and certain interest groups try to file lawsuits in favored courts, and do some judge shopping and forum shopping to maximize the likelihood that they can get relief.

But something like this, where a national emergency is declared, I imagine that the court system will act rather quickly to resolve these things. They will go up to the circuit court. And while you suggest that it ordinarily might take years to resolve these things, courts are capable of acting quickly too.

PAYNE: What if it does?

We had a guest earlier suggest that maybe some -- ACLU goes to the Ninth Circuit, and with -- perhaps with a pretty friendly, favorable court, could get the all the things done to really slow this thing down and make it a legal nightmare.

RAY: Maybe, but you still have to have plaintiffs who have standing to challenge this.

And it's a little unclear who exactly they would be, until activity really starts in terms of actually expanding funds that the president chooses to move around in order to meet the national emergency.

PAYNE: Right.

You mentioned President Trump's constitutional abilities to do this. Could it be argued that he's usurping Congress' role, traditional role, as keepers of the purse?

RAY: Well, you could argue that, except that this is a complicated situation, right, because Congress had already -- has already passed legislation providing the power to the president with congressional authorization, not just acquiescence, but actual authorization, to declare a national emergency.

And then certain things flow from that, including access to funds that the president otherwise might not have access to. So, the argument that this is going around the appropriations power is an interesting one. But it sort of bumps up against the actual reality, which is Congress has already legislated in this area.

And as the Supreme Court made clear in Youngstown in the concurring opinion, the famous concurring opinion by Justice Jackson, when the president acts pursuant to express authorization from Congress -- this would be an example -- he's at the height of his power, including the fact that he's the commander in chief.

PAYNE: In this bill -- and I don't know if anyone's finished it yet.

But we had a guest on earlier who's made some pretty good headway into it. He talked about certain provisions in there that de facto make it actually zero miles, I mean, if you really want to interpret this, and, for instance, that butterfly museum in Texas, that you cannot use our property.

Wouldn't the legal system have to ultimately -- maybe they built in safeguards. Maybe the Democrats built in safeguards for themselves to either make this something that would ultimately have to be adjudicated or just could never work because of the way it's framed.

RAY: Well, maybe.

And, of course, you could imagine plaintiffs, some of which would be subject to eminent domain in an action to -- for the government to be able to build wall -- a wall through certain areas, where, naturally, you're going to expect, no matter what happens, that there would be legal challenges to this, right?

PAYNE: Absolutely.

RAY: So we don't know how that's all going to work out.

But, obviously, in a situation in which the commander in chief, the president of the United States, pursuant to his authority under the National Emergencies Act, declares a national emergency, and then takes action, my guess is that courts are going to bend in the direction of recognizing the president's authority and power to do this.

PAYNE: I have read where Carter had two national emergencies, Ronald Reagan had six, H.W. Bush four, President Clinton 17, W. Bush 12, President Obama 13.

So why all the hoopla? Why do you think...

RAY: Because there's lots of posturing going around. And it's politics. And so it's easy.

I mean, on one hand, they're saying this is absolutely terrible that the president would declare a national emergency. On the other hand, there's precedent for this. It's pursuant to an act that Congress passed in 1976, and previous presidents have exercised their authority under it.

So, like, what's the big deal? Well, the big deal is that there's a lot of political posturing going on. That's the big deal.

PAYNE: Thank you very much. Really appreciate it.

We want to go back to Fox News senior Capitol Hill producer Chad Pergram with more on all of this.

Chad, what's the latest?

PERGRAM: Hey, we're getting the vote total right now.

They have just passed this spending bill. And I'm looking off-screen here to get the vote total on the spending bill, 83-16 -- 83-16 is the final vote here to pass this spending bill through the Senate.

And so what that means is that there is a wide, overwhelming margin in the Senate. And that probably means there will be a pretty wide margin in the House of Representatives.

There's one point I want to talk about. The president does not get all of the border money that he wanted.

(CROSSTALK)

PERGRAM: OK, Mitch McConnell's on the floor now, so let's listen in.

(JOINED IN PROGRESS)

UNIDENTIFIED FEMALE: Concurrent Resolution 4 providing for a correction in the enrollment of H.J. (INAUDIBLE) 31.

UNIDENTIFIED MALE: Is there objection to proceeding to the measure? Without objection.

MCCONNELL: I ask unanimous consent that the concurrent resolution be agreed to and the motion to reconsider be considered made, and lay it upon the table with no intervening action or debate.

UNIDENTIFIED MALE: Without objection.

MCCONNELL: I move to proceed to calender number 17, S-311.

UNIDENTIFIED MALE: The clerk will report the motion.

UNIDENTIFIED FEMALE: Motion to proceed to calendar number 17, S-311, a bill to amend Title 18 United States Code to prohibit health care practitioner from failing to exercise the proper degree of care in the case of a child who survives an abortion or attempted abortion.

MCCONNELL: I send a cloture motion to the desk.

PERGRAM: So what we're seeing right now in the Senate is, there's just some wrap-up.

The Senate is probably going to get out of -- out of town. Senators want to go home for the next week-and-a-half here. The House will come back in later tonight and vote on this bill.

I want to pick back up on this point I was talking about a moment ago that there are political consequences if the president goes through and tries to transfer money from one account to the other.

Now, there's two issues here. There's declaring a national emergency. And that's different from transferring money around from different accounts. Keep in mind that the Homeland Security appropriations bill is about $49 billion, $50 billion. There's a cap on that.

And so if they try to move money from account A for, say, pandemic flu and another account over to the wall, then somebody might say, wait a minute, we need money for the pandemic flu. Or maybe they try to go over to the Pentagon appropriations bill and try to move money for ships or aircraft and move things over there.

There are constituencies throughout the Congress, Democrats and Republicans, who will absolutely howl about that. Don't forget that they just got a big increase in defense spending last year.

And if the president goes in, even though some of these lawmakers might, in fact, support the wall, that's going to be a problem for them, when they say, wait a minute, you're going to go in and raid Peter to pay Paul. That's going to be a problem here on Capitol Hill. Watch for those fights.

Here's another point I want to make about Nancy Pelosi. She kept her powder dry as to what the tactics might be by Democrats . She talked about, maybe we should declare a national emergency on firearms. She cited the one-year anniversary of the massacre in Parkland, Florida, a year ago.

And there was just a markup in the Judiciary Committee on a gun bill yesterday to increase restrictions on background checks and things. She might say, wait a minute, if the president going to play ball this way, and we think we can get a Democrat elected to the White House in 2020, maybe we like this idea of national emergencies. We want to have this agility.

This is kind of opening Pandora's box. And that's why a lot of lawmakers on Capitol Hill in one respect are very concerned, because it's ceding power from Article 1 of the Constitution, Article 2 of the Constitution, from the Congress to the executive -- Charles.

PAYNE: Chad, thank you very, very much.

I want to bring in American Majority CEO Ned Ryun, Democratic strategist Scott Levenson, and Fox Business Network's Susan Li.

All right, everyone's chiming in on this. We just got a tweet from Kamala Harris -- Kamala Harris, rather.

"Declaring a national emergency over this president's vanity project is ridiculous. We don't need a wall. Instead, we should address the actual emergencies facing our country, everything from gun violence to the opioid crisis."

Susan, what do you make?

SUSAN LI, CORRESPONDENT: Well, I think that to declare a national emergency actually strengthens the president's hand when it comes to negotiating other deals as well.

We do have to raise the debt ceiling on March 1. That can be delayed by the Treasury Department until the summer. But if he does declare a national emergency, I think there could be some wrangling and that could also strengthen his hand in other negotiations as well.

SCOTT LEVENSON, DEMOCRATIC STRATEGIST: Isn't it the same kind of political shenanigans that the guy who was cleaning out the swamp was going to leave behind?

It seems like another gimmick. It's just not intellectually honest. Everybody knows there's not a national emergency on our southern border, so why declare one?

NED RYUN, PRESIDENT, AMERICAN MAJORITY: Well, I would disagree with that. And it's been done dozens of times.

But I'm not sure I like the approach, Charles. I would much rather prefer -- we have talked about this, it has been discussed -- Department of Defense Section 284 authorization. They have the ability to build fencing and walls and roads in known drug smuggling corridors.

The great part is how you define a drug smuggling corridor is actually rather loosely defined. You could argue the entire southern border is a drug smuggling corridor.

(CROSSTALK)

LEVENSON: But truth is, the facts just don't bear it out. The truth is, the facts just don't bear it out.

(CROSSTALK)

RYUN: Absolutely bear it out.

PAYNE: But I would disagree that when you say everyone knows it's not a national emergency. This has been a national emergency for a very long time, Scott.

LEVENSON: Well, there's been an immigration challenge. And there's a challenge to coming up with a comprehensive immigration policy. There is no doubt about that.

But to suggest that the people in Manhattan are hiding under their desks in fear of a caravan is silly. It's just not intellectually honest.

RYUN: But I think we continue down this path, Charles. It's costing us anywhere from $116 billion to $134 billion a year.

We have a broken welfare system.

(CROSSTALK)

LEVENSON: It's costing us to do immigration work. Immigration costs money.

(CROSSTALK)

LEVENSON: ... borders cost money. No one denies that.

(CROSSTALK)

RYUN: ... some form of social welfare.

(CROSSTALK)

PAYNE: What we know do know is that there have been caravan after caravan, and that the rest of the world is watching, and more families are coming up, more children are coming up.

It's an extraordinarily dangerous trip to make. We know, with the role of coyotes and what's happened there, we have seen some horrific images. And something has to be done. Something has to be done, Susan, for everyone on both sides of the potential wall, from the -- everyone involved in this, from those who are trying to enter this country...

LI: Absolutely.

PAYNE: ... without going through the proper process, and for those in America .

In Manhattan, we're not hiding under desks. But this has had a real, major impact on the United States.

LEVENSON: It seems, if you watched last week, no one was hiding under their desks.

(CROSSTALK)

LI: Hold on one second.

But I'm just talking about how much it costs the American economy at this point. We're talking about $300 billion to process, to accept -- and Social Security.

(CROSSTALK)

LEVENSON: We have two different numbers there. His number was half of your number.

(CROSSTALK)

LI: I'm using the one that the U.S. president is going by as well.

LEVENSON: It costs a nation money to secure borders. It costs a nation money to have an immigration thank .

(CROSSTALK)

LI: What is $5 billion, then? If that's the case, why not give $5 billion?

(CROSSTALK)

LEVENSON: Because that's not the answer...

RYUN: Of course it is.

LEVENSON: ... to an immigration policy. No, it's actually not an answer to a comprehensive immigration policy.

We have 10 million people in this country that have been living here for years.

(CROSSTALK)

PAYNE: We don't want to conflate necessarily, right, the DACA situation with what we're talking about, particularly more recently with these large caravans coming from -- from South America, Central America into this country, bringing families, bringing children, extraordinarily dangerous trips.

So, Scott, maybe this was an opportunity. When it first started, I thought there could be a grand bargain. Why not? You had that opportunity. Democrats turned down, I thought, an amazing offer from President Trump. And he made some compromises here.

They felt like they won, they scored a major victory with the shutdown, and maybe they overplayed their hand. But why not? You talk about comprehensive solution. That's a political term that the American public has heard over and over, by the way, from both sides of the aisle.

LEVENSON: Absolutely. Absolutely.

(CROSSTALK)

PAYNE: And, to me, it means like -- you know, when I hear that, I hear punt.

When I hear that, I hear...

(CROSSTALK)

LEVENSON: But the fact is, it's a huge challenge for our nation.

(CROSSTALK)

PAYNE: It is a huge challenge. When do we fix it? How do we fix it?

(CROSSTALK)

LEVENSON: Now is the time.

(CROSSTALK)

LEVENSON: And to suggest that one thing, like a border wall, is the only thing is just not intellectually honest.

RYUN: It's not. It's not.

LEVENSON: So, if we want to have a discussion about a comprehensive immigration policy, that's what we should do.

PAYNE: I think discussion time is over. We need some solutions.

Ned, what are you thinking now? Because your idea, obviously, that the administration must have thought of it, they rejected it, this is the route they're going down.

RYUN: It's a bold step.

I think Trump's going to make the argument, again, I tried to work with them. We negotiated. We don't want another shutdown.

Republican senators don't want a shutdown. I mean, this comes down to it. They don't want that.

But I totally agree with you, Scott. We should have a comprehensive immigration reform. We should deal with E-Verify. We should deal with chain migration. We should deal with actually securing our southern borders, part of which is an actual physical barrier.

LEVENSON: Securing all our borders.

RYUN: A hundred percent.

LEVENSON: Because the most porous ones are not the ones that need security by a wall.

RYUN: No, no, I disagree with you on that.

(CROSSTALK)

PAYNE: You're referring to people overstaying their visas.

RYUN: Overstaying visas.

LEVENSON: Sure, absolutely.

(CROSSTALK)

PAYNE: Also, the most dangerous -- the most dangerous come through the southern -- the most dangerous come through the southern...

LI: Southern border.

LEVENSON: Border crossings, legitimate border crossings.

(CROSSTALK)

PAYNE: Susan, with respect to this now -- I'm sorry.

We're going to take a listen to Senator Schumer.

(JOINED IN PROGRESS)

SCHUMER: ... doesn't constitute a national emergency.

Democrats support and have always supported strong border security. But the fact is, according to the CBP, apprehensions at our southern border are at historic lows.

President Trump couldn't convince Mexico, he couldn't convince the American people, he couldn't convince their elected representatives to pay for his ineffective and inexpensive wall.

So now he's trying an end-run around Congress, in a desperate attempt to put taxpayers on the hook for it. Make no mistake. Congress will defend our constitutional authorities in every way that we can.

I yield the floor.

PAYNE: Susan, I was -- I left with you.

We just heard, with Senator Schumer there saying, hey, these apprehensions at the southern border, they're down, that -- and, of course, we have heard the argument that the majority of drugs come through the legal ports, although it's safe -- it's safe to understand that, as we get greater technology there, there will have to be more and more that come through these porous areas where there is no physical security.

LI: Yes, I agree with you.

We do need more money to build fencing. In fact, they were in favor of that until the Republican president came into power. But I think there's a missed opportunity from both sides.

I mean, why not give the Republicans $5 billion for the wall, renegotiate DACA, and then we have a better immigration system that needs to be fixed?

PAYNE: Want to bring in -- we have got Devin Nunes. He's the ranking Republican on the House Intelligence Committee. And he joins us now.

First, Representative Nunes, let me just start with this vote, and, more importantly, the idea of a national emergency.

What are your thoughts? And where do you stand on this?

REP. DEVIN NUNES, R-CALIF.: I actually agree with your panel. I was standing here listening to the panel.

I think we need to have all -- everything on the table. We need to deal with DACA. We need to have a work permit system. That's really what we should be doing.

But the Democrats in the House haven't wanted to come to the table. So they promised that they were going to take care of immigration. This is the obvious time to take care of the DACA kids. But they're not willing to even put something on the table.

So what we're left with is barely starting the wall. But a true solution is real border security, with a real worker permit system, and dealing with the people that are here. That's what the American people should expect from us.

PAYNE: That's -- that's -- that goes without saying, I think, at this point, and yet that's not what's being delivered from Washington, D.C.

And it's been a very long period of time. President Trump now, perhaps, according to sources, ready to use a national emergency, Sarah Sanders saying that they're very prepared for legal challenges. Where do you stand with respect to that?

Because I know, within the Republican Party, some think that this could be a dangerous path to go down. It could open a Pandora's box.

NUNES: Well, it is a dangerous path. But the path has already been down by President Obama numerous times.

So I really support this idea, because I think we have to have legal challenges, so that we can show the American people whether the courts are going to only side with Democrats and Democratic presidents, or are the courts going to be fair?

There's definitely in the law -- this is an emergency on the border. The president has the powers to do it, where if you take, with President Obama, even though I'm the person who actually wants to deal with the DACA kids -- I think they need to be dealt with in a humane way.

But President Obama didn't have the legal authority to give these people status. And that's still being fought over in the courts. So I think it's a good idea, because we're paying the price for an administration that went really awry over the last eight years, before Donald Trump became president.

PAYNE: Representative Nunes, let me change the directions here a little bit, because there's a lot of fallout, the "60 Minutes" interview coming up with Andrew McCabe, also promoting his new book, "The Threat: How the FBI Protects America in the Age of Terror and Trump."

And the most explosive thing so far, an admission of sorts of a potential, for lack of a better word, coup against President Trump. I mean, what do you make of that?

NUNES: Well, I actually had not heard the name of the book until you just said. It's interesting they talk about in the age of terror.

What I think most Republicans agree with that, but the terror came from the FBI and Department of Justice, who used a document, dirt, dug up by the Clinton campaign to start an investigation, and then including -- I mean, if you read -- if you have seen some of the interviews or have read the excerpts -- he even talked about the steps that he -- that he took to ensure that the investigation would continue.

We know from -- I have looked at all of this over the last two years. We know for a fact the FBI knew at the time of the appointment of the special counsel from the lead investigators that there was no there there, meaning that they had nothing on Trump. They had no collusion. They never did.

Why? Because it was propaganda from the Russians given to the Clinton campaign, picked up by our FBI. It's an embarrassment. And it is a terror. And they did try to attempt a coup. And it should never have been done.

And this needs to be righted. It's a wrong that needs to be righted.

PAYNE: It's shocking. Really, I mean, we have to really sit down and pause for a moment.

And I think we get hit with so much news, and it changes every 24 hours, that we just let things go. But the idea that the FBI was doing a nose count to see maybe how many members of the Cabinet -- they needed eight -- would be OK with the 25th Amendment to take away the presidency, to overturn essentially the vote of the American people, ostensibly because they thought he would pull the plug on a Russian investigation.

It just -- it's so far-fetched. And yet this is real life. This was happening. How is this happening in this country right now?

NUNES: Not only did it really happen, Charles, but they cast a net so wide, without any, any real evidence on anyone.

The only evidence they had was this dossier that the Clinton campaign paid for that came from Russians. And the irony in all this -- and I know I can't say it enough times -- the very thing that they were investigating the Trump campaign for, which was supposedly getting dirt from Russians to use against Hillary Clinton, that's exactly what the Clinton campaign did.

And so I hope that the new A.G. gets in there, and he starts to clean house, and so that we can start to put the Department of Justice and the FBI back together again.

PAYNE: Sir, I want you to take a listen, along with the audience, to what Senator Graham had to say earlier today.

(BEGIN VIDEO CLIP)

SEN. LINDSEY GRAHAM, R-S.C.: We're definitely going to speak to Andrew McCabe and the whole crowd about what happened during the 2016 election.

(END VIDEO CLIP)

PAYNE: A lot of people believe that Andrew McCabe should be facing justice himself.

Of course, he was fired the day before his retirement for lack of candor, which is a euphemism to -- for lying.

What are your thoughts on bring Andrew McCabe back to Capitol Hill and digging further into this and maybe where he should -- should he be facing some legal challenges himself?

NUNES: Well, all of them that were involved in the development of the FISA, OK -- so this was the secret warrant that went after the Trump campaign -- everybody who was behind that should be held accountable.

Whether -- whether it was a conspiracy or not, whether it was abuse of power, I don't know, but they should be held accountable. The court, the FISA court, should hold them accountable also. The FISA court should step in. They could all lose their -- their law licenses or be -- or be charged with lying to the court or misleading the court.

Those are the types of things that need to happen if we're going to keep this process, this FISA process, which is designed to target terrorists, to target bad guys. The American people need to understand that system that's supposed to target really bad terrorists and foreigners was used against a political campaign.

That's where this all went wrong. And somebody's got to fix it, because every day that goes by that it's not fixed, there's fewer and fewer Republicans who will support the continuation of these programs, which are extremely important to protecting Americans.

PAYNE: Sir, we have a statement, a joint statement that's just come in on the possibility of President Trump declaring a national emergency.

It's from Senate Democratic Leader Chuck Schumer and Speaker Nancy Pelosi. I want to share it with you.

It's a joint statement -- quote -- "Declaring a national emergency would be a lawless act, a gross abuse of the power of the presidency and a desperate attempt to distract from the fact that President Trump broke his core promise to have Mexico pay for it, his wall.

"It is yet another demonstration of President Trump's naked contempt for the rule of law. This is not an emergency, and the president's fear- mongering doesn't make it one. He couldn't convince Mexico, the American people or their elected representatives to pay for his ineffective and expensive wall, so now he's trying an end-run around Congress in a desperate attempt to put taxpayers on the hook for it. The Congress will defend our constitutional authorities."

Your thoughts?

NUNES: Well, for those people to talk about lawlessness, after President Obama set a record for executive orders and executive actions without any authority, is hysterical.

So they probably just ought to look in the mirror, because normally whatever they accuse you of doing, they're actually doing themselves.

Like I said earlier, I think this is an important step to take, because this needs to get into the courts, because we need to deal with all of the executive actions that have taken place over the last decade or so.

PAYNE: Are you confident that that will happen?

I mean, we're looking at an American public who is really skeptical. We have seen hearing after hearing after hearing after hearing, and it just goes on and on, from one administration to another.

And it feels like this notion of some form of justice, some form of clarity, some finality to all of it remains very elusive.

NUNES: It does.

And it's like we started out with, Charles. This is -- this is really sad that we cannot get bipartisan cooperation in this town to solve the problem with immigration.

Remember, Republicans got about 180 votes last year in the House. We need 218. We only got 180. But that was for DACA. It was for building the wall. It was for border security. It was a great -- it was a great piece of legislation. Not one Democrat voted for it.

Here they now have -- they promised all these DACA kids that they're going to take care of the DACA kids. The president reached out to them, gave them an olive branch to have some type of comprehensive immigration reform, and they haven't done it.

So -- and then they sit there. I mean, you just -- I just -- it's the first time I heard the statement. You just read it. But to sit there and complain about lawlessness, I mean, give me a break.

PAYNE: All right.

Representative Nunes, thank you very, very much. Really appreciate your time.

NUNES: Thanks, Charles.

PAYNE: Also, should let the audience know we reached out and called Adam Schiff, chair of the House Intel, and he wasn't available at this time.

More right after this.

(COMMERCIAL BREAK)

PAYNE: We got major breaking news just coming in.

The United States government and Facebook are negotiating a record multibillion-dollar fine for the company's privacy lapses. This is according to The Washington Post. That is huge, huge news.

And we also have another major story for you from another big tech name. And that's Amazon saying see you today to New York City, scrapping plans for a second headquarters there, this coming after a lot of backlash from local officials. Amazon stock down just 1 percent on today's session.

The results of the president's physical, well, they're in.

John Roberts is at the White House with the very latest -- John.

ROBERTS: Charles, good afternoon to you again.

The president was up at the Walter Reed National Military Medical Center for four hours on Friday. A team of doctors, including his personal physician, Sean Conley, and 11 specialists looked him over. And they pronounce that he is -- quote -- "in very good health overall."

One problem for the president, he weighs 243 pounds. That gives him a BMI of 30.4. That's not good, four pounds more than he weighed last year. His blood pressure is still fine, though, 118 over 80, his temperature 98.2. A lot of people think the president runs a little hot, but he actually runs a little cool.

There were no findings of any significance or changes to the ears, eyes, nose, mouth, teeth, guns, heart, lung, skin, gastrointestinal or neurologic system, liver, kidney and thyroid function all normal, as are his electrolytes and blood counts.

He still has a fairly high cholesterol number. It's 196, with his LDL at 122. So, as a result, the doctors increased his dose of Crestor up to 40 milligrams a day, which is pretty close to the maximum.

But all in all, his heart is in good shape. They say that the rest of him is in good shape as well. So he does remain in very good health. I don't want to say he's the healthiest president ever, but he's in good health.

(LAUGHTER)

PAYNE: I got to tell you, for all the things that he deals with and compartmentalizes, he is pretty healthy, that's for sure.

ROBERTS: That 30.4 BMI has -- he's got to watch that.

PAYNE: Yes.

ROBERTS: Maybe, when he plays golf this weekend, he might want to walk, instead of taking a cart.

PAYNE: Tell me about it. I'm afraid to even look at my BMI.

John, thank you very much. Appreciate it.

ROBERTS: You bet.

PAYNE: While we hug those we love tight today, remembering the 17 families in Parkland, Florida, who wish they could be doing the same, families like Andrew Pollack's, who are turning their tragic loss one year ago today into action to keep kids safe every day.

Andrew is next.

(COMMERCIAL BREAK)

PAYNE: To Parkland, Florida, where students are expressing their love and remembrance today by forming a human peace sign, holding a moment of silence and finding other ways, like planting flowers in a community garden, to say hello and be close to those they lost a year ago today.

(BEGIN VIDEO CLIP)

ANDREW POLLACK, FATHER OF PARKLAND SHOOTING VICTIM: There should have been one school shooting, and we should have fixed it! And I'm pissed! Because, my daughter, I'm not going to see again. She's not here. She's not here.

(END VIDEO CLIP)

PAYNE: Andrew Pollack's beautiful daughter Meadow was -- she was killed in that horrific school shooting this year -- one year ago, and he has been fighting to keep his daughter's memory alive and students everywhere safe ever since.

Andrew, welcome to the show.

POLLACK: Well, thanks for having me, Charles.

PAYNE: Just your thoughts one year after this horrific tragedy and where - - where you feel progress may have been made so far.

POLLACK: Well, I made a lot of progress, because I took a different path than mainstream media and the liberal politicians.

I actually went and looked at the facts and what led up to February 14. We looked at it. And we addressed the problems, and we made a lot of changes at a federal level with the president and at a state level now with our new governor and our last governor, Rick Scott.

PAYNE: Yes, they certainly have been very instrumental. What are some of the key changes that have been made that you feel perhaps should have been made a long time -- time ago?

POLLACK: One of the key changes that I worked on that meant so much to me was the Obama era leniency policy brought to Broward County and snuck into parents throughout the whole country was leniency policies of not holding kids accountable for committing many crimes throughout the school year.

So my daughter was subjected to a kid that wore swastikas to school, brought a dead animal to school, bullets to school, and with never being arrested. So those things were addressed now in Florida. We're looking into the diversionary programs.

The president recently through his federal commission ended the Obama era leniency policy, so every kid's going to have a safer environment throughout the school.

Also, what we looked on was arming the right personnel in schools. Through -- through the research, through that Marjory Stoneman Douglas Commission, they came to the conclusion that armed personnel in schools would make a big difference.

So now in Florida, we have one armed per thousand student. And a lot of other states are following in Florida's footsteps, because usually a mass shooting takes about four minutes. And average response time is about seven.

So we need people to act right then and there at a situation if we want our kids safe.

PAYNE: Right.

POLLACK: So that's something that we worked on in Florida with -- and more mental health care.

PAYNE: What about the role of these security dogs?

POLLACK: Security dogs, yes, they are awesome.

There's people working with dogs, training them to go towards gunfire. So I think that would make a big difference in schools. It's -- everything's about have it being a deterrent. It all adds up. There's different layers of security.

And if someone knows that they're going to go to a school that doesn't have a sign on it that says gun-free zone or there's a canine on patrol, they're not going to go to the school.

PAYNE: Andrew, what do you make, though? There's still considerable pushback against perhaps arming certain teachers, teachers who may be qualified, ex-military, ex-police officers, or just certain -- certain teachers, creating that element of the unknown element that would certainly deter a potential person thinking that this is an easy target.

There's a lot of pushback against that. Where are you on this?

POLLACK: Well, they didn't have a daughter on the third floor shot nine times, praying for someone to save them. So that -- that's first. That's what I'm going to tell them.

When my daughter was waiting, if there would have been a teacher on that third floor, a janitor, a lunch lady that's been trained, they could have saved my daughter. So I know how extensive the training is. It's about 150 hours of training.

They're held to a higher accuracy than regular deputies, gun retention. They're trained so extensive, that it would be an asset for any school to have someone to go through that guardian program and be armed at a school. So I'm all for it.

And any parent that says they're against it, let them tell that to me if it was their daughter on the third floor waiting for someone to save them.

PAYNE: Of course, a lot of your frustration and anger and aimed at the prior sheriff. There's a new sheriff, Gregory Tony. Are you -- are you happy with this new sheriff so far?

POLLACK: The new sheriff really -- he's not a political guy. He's going to put the community's safety first.

We had a sheriff before that politicized the whole department. So Sheriff Tony, he's going to bring law and order to Broward County. He's going to train. He's highly trained in active shooter. So we're looking forward to him enacting all his new policies and bringing back the morale.

(CROSSTALK)

PAYNE: And people who work for him running toward -- toward danger and risking their lives for the public good, I would imagine.

POLLACK: Yes.

Well, he's trained in active shooter drills. And he's going to bring that training to his deputies. And already, throughout the community, the morale is coming back to the Broward Sheriff's Office.

PAYNE: And you are -- the state board of education, I understand, there's a reappointment in the process for you?

POLLACK: Yes, I'm looking forward to helping different school districts and bringing my knowledge of school safety to other communities, and being a part of making every environment safer for our kids and teachers.

And I think I will bring that to the Department of Education, once I get reappointed.

PAYNE: And I know, of course, that you -- you want to get this across the country. You want to save all these kids or prevent these from happening - - these things from happening again.

Where are you with respect to maybe a national program or getting more awareness across the country?

POLLACK: Well, Charles, we have worked at a national level. Like I said, the president didn't get much acknowledgement for putting together a commission of all the secretaries, with over 100 recommendations on school safety.

So it is getting done. What I urge parents is to get involved with their schools. See what type of programs. Go see what kind of safety is at the school, and if they have single point of entries. Are they participating in those Obama era leniency policies?

PAYNE: Right.

POLLACK: But the government -- the president did a lot for school safety. He didn't really get any acknowledgement for it.

PAYNE: Right.

Andrew, I read where you talked about your daughter Meadow. You said: "I see her all day long. She's in my head."

Tell us a little bit about her.

POLLACK: Well, she's just -- she was a fighter.

I got a text today from her boyfriend, and it really teared me up or killed me, because Meadow was a fighter. And everything she wanted in life, she would fight for, and, at the end, she would get it.

And he said to me, he said: "You're fighting for your daughter."

And that meant a lot to me, because I'm fighting for everybody that just wants their kid safe. We don't want to politicize a tragedy, like most politicians do and mainstream media. We want to be able to drop our kids off at school and know we're going to pick them up at the end of the day.

So, if we all just work together, both parties, and just said, let's just focus on schools, I think we'd have a much better chance of fixing it.

PAYNE: And, of course, you do this in honor of Meadow. You see her every day all day long. She's in your head.

And, of course, today, we remember her and those -- and the other 16 that were ruthlessly gunned down one year ago today.

Andrew, I just want to say, I follow you. I admire you. I admire what you're doing. And we all share the pain of the tragedy that you and your family have gone through.

Again, folks, it's one year ago today in Parkland, Florida, 17 murdered, 17 injured.

Content and Programming Copyright 2019 Fox News Network, LLC. ALL RIGHTS RESERVED. Copyright 2019 ASC Services II Media, LLC. All materials herein are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of ASC Services II Media, LLC. You may not alter or remove any trademark, copyright or other notice from copies of the content.