With a major announcement from President Trump looming, everyone is holding their breath—and nobody likes the idea of President Trump declaring a national emergency to get his wall built.
For Republicans, it’s an overreach of executive power that goes against everything their party is supposed to stand for. For Democrats, it’s a made-up crisis designed to do an end-run around the Congress to get money for a wall the country doesn’t need or want.
But as the government shutdown stretched into a fourth week, Trump’s threat to invoke a state of emergency may be the “best worst option,” says Matthew Dallek, a political historian at George Washington University’s Graduate School of Political Management—because it may be the president’s way out of the trap of his own making, that would let him get his wall money, claim victory with his base in the longest government shutdown in history, and then re-open the government.
“It’s his way to show his supporters he did everything,” says Dallek. “And if the courts push back, he can blame the Democrats and the courts, two of his favorite targets, and then he can run on the wall in 2020. ‘Re-elect me and vote Republican to get the wall done’.”
The downside, politically, is that it would create an uproar in Congress, where lawmakers in both parties would see it as an extraordinary if not outright illegal measure to access funds from the Defense Department or natural disaster funds.
That may be what had Trump hold off. “His lawyers might be telling him this is going to be a hard case for us to present, and you could lose because it’s such a blatant end run around Congress,” says Dallek. “And he loses the issue, it fades, it recedes and it’s an issue he really loves.”
Trump is chasing a unicorn because the wall he envisions will never be built. The Washington Post reported that even if 10,000 workers were deployed, it would take a decade or more. And Trump would be long since gone. It’s not just the construction, there are environmental issues, court challenges to seizing private property, plus the illegal funding question that would likely go to the Supreme Court.
It is so transparently not an emergency and so obviously an end-run around Congress. But it’s Trump’s lifeline, his ticket to a second term. Polls show a majority of Americans oppose the wall, and a majority blame Trump and the GOP for the government shutdown. But among Republican voters, support for a wall is growing.
In Trump country, the wall is popular. Republican senators led by leader McConnell are more afraid of a challenge from the right than they are of a slowing economy resulting from the shutdown.
Ironically, the 1976 Presidential Emergencies Reform Act was one of the post-Watergate reforms put in place to rein in presidential power. There are some 30 in effect, many routinely renewed each year. President Carter used the Act to seize Iranian property after the hostage-taking in Tehran in 1979. President Bush’s 9/11 emergency declaration is still in place.
Congress initially set up the law so a majority vote in each chamber could override any president’s emergency declaration. The Supreme Court in 1987 raised the bar to a two-thirds supermajority in both houses to override a presidential veto. The law calls for the Senate and the House to meet every six months while an emergency is in effect to consider termination, but no Congress has ever challenged a president’s authority in this area.
“There’s an assumption that presidents will use these powers judiciously,” says Mallek. President Obama called a national emergency over the swine flu in 2009 so that Medicare and Medicaid rules could be relaxed to treat more patients. He also called an emergency over the contaminated water situation in Flint, Michigan in 2016, responding to a request from the state’s Republican governor.
The only time in recent memory that an emergency declaration was challenged was when President George W. Bush used a state of emergency to relax wage standards after Hurricane Katrina, arguing that if contractors were allowed to pay “prevailing wages” as opposed to federally mandated wages, it would jumpstart construction. He got so much opposition that he retracted the provision.
If the standoff over the wall were really about the wall, and not Trump’s road map to re-election, it would be easy to fix. Peter Berk, a branding expert and co-founder of Hot Ice Media, proposes the formation of a bipartisan task force that could be called BEST, for Border Enhancement Strategic Team, to evaluate every foot of the southern border and then recommend how each region would be best protected. Some areas could use an actual wall, others steel slats or enhanced technology, others more personnel.
Both sides would agree to abide by the recommendations of the task force with certain caveats so that each side isn’t forced to completely compromise their core positions. There could be a $5 billion cap on all border enhancements, and both sides would agree to form a separate bipartisan task force to work on DACA (Deferred Action for Childhood Arrivals) and other short-term immigration reforms.
“While I'm anything but an expert in these matters, living long enough and working with many people and companies seeking to maneuver their way in highly competitive industries has taught me that only through compromise can both sides move forward, accomplish their goals and satisfy the needs of their constituents, employees or supporters,” Berk said in an email.
Makes perfect sense, but this is Washington, where nothing makes sense.