I’m glad he ended up passing on an emergency declaration, assuming this WaPo report is accurate. But (a) it’s Trump, so he might end up changing his mind and then changing it back again and then the other way 30 seconds before his speech goes live, so stay tuned. And (b) as cynical and dubious as a declaration would have been, it would have given him a face-saving way out of this shutdown mess. The battle would have shifted from the halls of Congress to federal courthouses, with the government funded quickly and both sides able to say they refused to cave. If he’s not going the emergency route, what route is he going?
During his interviews, Pence did not rule out the possibility that Trump at some point would declare a national emergency and direct the military to construct a border wall. But the vice president said repeatedly that the administration is seeking a negotiated solution with Congress.
And a senior White House official with knowledge of Tuesday’s speech said the plan is not to call for a national emergency but to further build a public case for the wall…
The White House is working to schedule a meeting with Democrats on Wednesday to resume talks on ending the shutdown. One possibility under consideration by Trump is to negotiate with Democrats for the next few days, then declare a national emergency to end the shutdown, according to a person with direct knowledge of the president’s thinking.
So, no emergency declaration tonight — he’s doing things by the book when he comes before the public — but possibly an emergency declaration on Thursday or Friday?
What’s the point of negotiating over the next few days in that case? Why would Democrats make any concessions if he’s on the verge of doing something that would end the standoff anyway, particularly knowing how angry their base would be if they caved under threat of an imminent and dubious emergency decree?
True to form, he’s keeping his own party in suspense about what he’ll do. Bad for GOP unity, good for drama:
The White House counsel’s office has been reviewing the legality of an emergency declaration since last Thursday, according to a source familiar with the process. They’ve been examining three potential avenues that would allow the president to mobilize personnel and tap into funds that are currently available for purposes not involving border security.
And as the president and his aides have considered the matter, the counsel’s office has also urged them to take actions to strengthen a potential legal defense, from making public references to a national security crisis on the Southern border to holding meetings on the matter in the White House Situation Room.
The problem with the case that there’s an emergency at the border that must be addressed immediately is answering the question of when this alleged emergency developed. Republicans could have had this fight at any point during the last two years, Josh Barro notes. Trump could have declared an emergency on Inauguration Day; it would have been right in keeping with all of his immigration rhetoric during the campaign. Senate Republicans could have used budget reconciliation as an end-around the filibuster to secure the money. If populist media cared about the wall as much as they momentarily claim to, they could have battered Trump and Republicans in Congress for not getting it done every day since January 2017. Apart from Ann Coulter, who’s done that? The ratio of “Trump is the greatest president ever” chatter to “Trump’s not addressing an emergency at the border” chatter had been steadily running at around 99/1 until December. Plus, by sheer rhetorical reflex, Trump devotes half of his time commenting on immigration to noting how awesome a job he’s doing securing the border. If America’s borders are more secure now than they were two years ago, the case for an “emergency” is that much thinner.
Here’s the relevant statute. As I read it, the fact that it mentions a declaration of an emergency in tandem with a declaration of war implies that it isn’t to be invoked lightly, like a governor declaring a “state of emergency” during a storm. This is more of a 9/11-style “America has been attacked” measure, authorizing the president to do what he needs to do to protect the country when normal constitutional processes are momentarily impossible or inefficient. The last thing it would logically be used for is to short-circuit a garden-variety executive/legislative dispute over funding priorities. Even if it was invoked, David French points out that it’s limited on its own terms to projects that are “essential to the national defense” in situations that “may require” use of the armed forces. Again, it’s clearly contemplating true catastrophes that necessitate immediate action, not a longstanding chronic problem like illegal immigration. Look at it this way: What sort of national “emergency” requiring extraordinary executive action is it if the solution involves … construction that might not begin for months and may take many years to complete? When would the wall even begin to be effective in easing this alleged “emergency”? The point of the statute is to enable lightning-fast executive responses to a sudden dire threat, not a decade-long building project that Congress simply refuses to authorize.
The wall fight isn’t about building a wall, though, it’s about resolve and big-picture views of illegal immigration. Trump can show his resolve and forcefully advocate for his view tonight even if he doesn’t get the wall in the end. Moral victory, if nothing else. Hopefully it’ll at least shift public opinion towards stronger borders. While we wait for the speech to start, enjoy Kellyanne Conway throwing down with Jim Acosta earlier today.