Judge Andrew Napolitano said Monday that if President Trump feels forced into declaring a national emergency on the southern border, he would "win by losing."

Napolitano said any executive order that Trump could potentially issue in order to appropriate funds to build a wall is bound to be blocked in federal court.

"I think the law is very clear," Napolitano said, adding that it will likely be found unlawful to "spend money not expressly appropriated for the wall... it's pretty clear a court may stop him from doing that."

However, Napolitano said Trump would gain political points with his base and relieve the "political pressure" they've put on him in demanding he act, while House Speaker Nancy Pelosi (D-Calif.) fails to compromise with him on border security.


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Napolitano said Trump could explain to the public that he tried to fix the border security debacle but was stopped by what he would consider an activist judge.

"So in that scenario, he would win by losing," Jon Scott suggested, to which Napolitano agreed.

"It's not that I want him to lose, I don't, but the law is very clear. When [President Harry] Truman attempted to [declare an emergency] during the Korean War, the Supreme Court said 'you can't spend money unless Congress has authorized it.'"

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