Under this plan, Trump would grant himself emergency powers, borrow the “power of the purse” from legislators, redirect funds away from the Pentagon, and build a border wall in defiance of Congress’ wishes.
How likely is the president to pull the trigger on this? As of this morning, Trump made it sound as if he’d effectively made up his mind.
“I have the absolute right to declare a national emergency. The lawyers have so advised me. I’m not prepared to do that yet, but if I have to I will. I have no doubt about it. I will. I have the absolute right to declare. […]
“I have the absolute right to declare a national emergency. I haven’t done it yet. I may do it. If this doesn’t work out, probably I will do that. I would almost say definitely…. This is a national emergency.”
Asked why he hasn’t already made such a declaration, the Republican added, “I would like to do the deal through Congress and because it makes sense to do it through Congress but the easy route for me would have been to call a national emergency and do it.”
When a reporter followed up, asking about the degree to which he’s serious about this, Trump replied, “If we don’t make a deal, I mean, I would say 100 percent but I don’t want to say 100 percent because maybe something else comes up. But if we don’t make a deal, I would say it would be very surprising to me that I would not declare a national emergency.”
Of course, the president’s argument seems to be that pursuing this route is more of a fallback plan in response to legislative failure than a genuine belief that there’s an actual emergency that necessitates extraordinary action. Don’t be surprised if his quotes are used against him in the event of a court case. (It wouldn’t be the first time.)
It’s important to emphasize that Trump is an unreliable narrator when it comes to his own presidency, and just because he says he’s going to make a declaration is no way evidence that he intends to follow through. That said, facing the prospect of a historic legal dispute, it’s worth considering the scope of the seriousness of what may soon unfold.
As this relates to the ongoing government shutdown, a variety of observers – from the left and the right – see a national-emergency declaration as the most obvious off-ramp for the White House. If/when Trump pursues this radical approach, there would no longer be any reason to block congressional spending bills and the government could reopen.
After all, at that point, the president would start exercising emergency powers and diverting funds. Lawsuits would obviously follow, but that simply means the question would be in the hands of the courts, not elected policymakers.
If Trump’s face-saving gambit were to fail in the judiciary, he could tell his base that he gave it his best shot and fought as hard he could. The rest of the political world could return to something resembling normalcy.
Does this mean an emergency declaration might actually be good news? That’s a matter of perspective. Many would benefit from the end of a pointless shutdown, but as the New York Times’ Charlie Savage explained in an overnight piece, if Trump were to pursue such a radical strategy, it would be “an extraordinary violation of constitutional norms,” which would risk long-term damage to how federal institutions are supposed to operate.
As Walter Dellinger, a former solicitor general in the Clinton administration, put it, “If there is not, in fact, a persuasive basis for this being the kind of national emergency that was contemplated by Congress, and it is nevertheless approved by the Department of Justice, what is the rule-of-law cost? What kind of slope does that start us down? One question is whether there is some other way out of this current mess that doesn’t involve such a cost to the rule of law.”
As for whether the courts would tolerate such a gambit, there’s been considerable debate over the last several days about whether Trump could expect to get away with this scheme. NBC News published a good report the other day on where the experts tend to fall on this question.
Postscript: The timeline is also worth keeping an eye on. Major legal disputes like these tend to take quite a while before getting resolved. It’s possible, if not probable, that Trump could try this radical move, and the adjudication would extend well into 2020. All of which is to say, if the president sees this as the quickest route to beginning construction, he’s likely to be disappointed.