Report: White House "finalizing" details of emergency declaration in case immigration negotiations fail

CNN reported a week ago, the night before the shutdown ended, that the White House had been tinkering with the language of an emergency decree for the border. But they were vague on the timing; it sounded from the story as if they’d begun putting something together at some point during the shutdown but then stopped to focus on other avenues towards building the wall.

According to Politico, they’ve now resumed work on it with an eye to rolling it out on the 15th, assuming Congress can’t make a deal before then. Which of course it can’t.

The White House is finalizing details of a potential national emergency declaration to secure President Donald Trump’s border wall, even as lawmakers are trying to broker an immigration deal that could avert another shutdown in just over two weeks.

Trump met with his budget chief, acting chief of staff Mick Mulvaney, Jared Kushner and other top officials, including White House lawyers, on Tuesday to walk through the logistics of such a move. And White House aides have been quietly meeting with outside conservative political groups to build support for the president to take such an action. Those talking points, which emphasize Trump’s legal authority, have begun to show up in such conservative media outlets as Breitbart News…

One senior White House official told POLITICO the goal is to have such a declaration 100 percent ready and coordinated should Trump decide to move on it rather than scrambling ex post facto to draw up and justify one.

Trump and Kushner have misread Democrats repeatedly since the start of the shutdown, most glaringly in apparently believing that Trump’s “BRIDGE Act for wall” offer might attract a meaningful number of Dem votes in the Senate. I think they’re misreading them here too, believing that if they leak details about how Trump is really, truly serious about an emergency decree, it’ll cause Dems to panic and make them more amenable to concessions during negotiations. Might as well agree to fund the wall and get a little something in return than stand by and let Trump fund the wall on his own, with Democrats receiving nothing, right?

But that’s not how they look at this, I’d bet. Pelosi would rather have Trump declare an emergency than continue the charade of negotiations, since Trump has ruled out the sort of major concession that might divide the left over whether to accept it. If he issues an emergency decree, she can tell Democratic voters that she never blinked under pressure. She denied him his wall money. And she could point to the fact that the idea of an emergency declaration has consistently polled very poorly since Trump first floated the idea last month. Voters are divided on the wall, less divided but somewhat divided on who bears blame for the shutdown, but solidly opposed to an emergency declaration that would let the president do what he wants. (Although Republican opposition will soften up a bit if/when Trump actually does it, of course.) She can make hay of that. And she’ll also make hay of the fact that, as Politico notes, the money for the wall seized in an emergency is likely to come for the Army Corps of Engineers, who’d otherwise be using those funds for disaster relief and recovery. Democrats will dine out on that for ages. “He took Puerto Rico’s money for a wall!”

Sounds from this like McConnell might be grudgingly okay with an emergency declaration at this point too. He opposes it in principle but his attitude is clear: Anything is better than another shutdown. If Trump wants to take his chances in court, well, at least that doesn’t put Senate Republicans in any direct political jeopardy. And it would spare Cocaine Mitch the agony of trying to decide whether to override Trump’s veto if negotiations fail next month and he tries to shut the government down again. Does this sound like a man who’s ready for compromise?

Even I’ve come around to see the value in declaring an emergency, for the following narrow reason. If you believe that past presidents have abused their powers by decreeing dubious emergencies, and if you find it especially dubious that Trump wants to do it in this case to usurp Congress’s power over appropriations, then this isn’t the worst time to have a big court fight over presidential power. It’s risky for sure: The Supreme Court might decide that this is a political question and should be left to voters to sort out, which would effectively greenlight all sorts of future executive power grabs. But rarely do opponents of expansive executive power get a fact pattern as favorable to their side as this one. Trump’s delayed his declaration for weeks in order to negotiate with Congress, raising the question of how much of a real emergency this can possibly be. He’s used the threat of an emergency decree transparently as a way to try to pressure Congress and gain leverage in those negotiations. And his solution to the alleged “emergency” is a lengthy building project that probably wouldn’t begin for months. He’s begging SCOTUS to call BS on him. And if they do and establish the precedent that courts should scrutinize presidential emergency decrees closely for illicit motives, that might make future presidents think twice about issuing them. We’re destined to have a court battle on this subject at some point. Why not now, in a comparatively low-stakes situation?