Since Graham is re-upping his own call for an emergency decree, let me re-post the key bit from George Will’s column about him last week: “Why do they come to Congress, these people such as Graham? These people who, affirmatively or by their complicity of silence, trifle with our constitutional architecture, and exhort the president to eclipse the legislative branch, to which they have no loyalty comparable to their party allegiance?”
If White House and Congress fail to reach a deal then President @realDonaldTrump must act through emergency powers to build wall/barrier.
— Lindsey Graham (@LindseyGrahamSC) January 28, 2019
I’ll add a question to Will’s. Why would Democrats agree to negotiate with Trump when he’s threatening to “eclipse the legislative branch” by using executive power to grab what he wants Dems to lawfully agree to? A tough posture here, you would think, would be to demand before talks begin that he publicly promise not to use an emergency decree if they don’t end in a deal.
There’s method to Graham’s madness, though. He knows there are only two ways the new three-week negotiation process can end, either with Trump declaring an emergency to fund the wall and trying his luck in court or with Trump putting Senate Republicans in a very difficult position by resolving to shut down the government again. According to a GOP senator who spoke to Axios, they almost reached that difficult position last week — before POTUS surprised everyone by throwing in the towel:
“I can tell you exactly what happened,” one Republican senator texted me. “The mood at Senate Republican lunch on Thursday resembled what the mood must’ve been on the Union lines at 4 pm at First Bull Run. I’m amazed only six [Republicans] voted for Schumer’s bill. The message from that lunch by VP, Shahira [Knight] and Mitch [McConnell] to POTUS was, it’s over. [There’ll] be 70 votes within 48 hours.”
Having the Senate (and House) override Trump’s veto to end the shutdown before it paralyzed national air traffic would have torn the party apart. If Senate Republicans had broken ranks and joined with Schumer over Trump’s objection, the stab-in-the-back would have been remembered by populists for years. Because it was Trump who reluctantly gave up, though, it’ll be forgotten in two weeks. In the end, POTUS did McConnell a favor by folding and absorbing the political heat from the right just as McConnell had done him a favor by sticking with a shutdown for a month to try to twist Pelosi’s arm on the wall.
But POTUS doesn’t take criticism well, especially from his own base. And he loathes being perceived as weak, which is the universal verdict on him folding on Friday. Graham is worried here that Trump might try to overcorrect by digging in for another shutdown if negotiations fail, which they will, and that that’ll force Senate Republicans into a belated back-stabbing anyway. Which would be strategically insane by the White House, of course: Trump caving the first time and then forcing Senate GOPers to betray him on a second shutdown would leave the right pissed off at their entire leadership, from the White House to Capitol Hill. But there’s no logic to how and when a loose cannon fires. Graham’s trying to steer Trump early towards the least politically disruptive option in front of him for when, not if, negotiations break down. That option is an emergency decree.
He probably also figures that Trump will lose in court, minimizing the constitutional damage from a dubious power grab in which the president tries to will into existence something that Congress refuses to legislate. With good reason:
Trump’s hesitation also belies his claim that there is an emergency at the border. Presidents don’t dawdle in the face of real emergencies. President George W. Bush did not spend weeks scratching his head about whether to issue an emergency declaration after the terrorist attacks of 9/11. But even if a real crisis existed, emergency powers are designed for situations in which Congress has no time to act. If Congress does have time, then there is no justification for bypassing the ordinary legislative process.
Indeed, the more time Congress has to act—and the more times it votes against providing the funding the president has asked for—the clearer it becomes that an emergency declaration in this case would be designed as an end run around the Constitution.
Jazz made this same point yesterday: “Either the illegal immigration problem at the border is a national emergency or it isn’t. It can’t just be a national emergency if he doesn’t get the construction money he wants.” By delaying the emergency decree so that Congress and the White House can negotiate, Trump’s undermining his case day by day that the situation at the border requires extraordinary executive action. If he’s intent on going this route, which seems to be the case, he should have declared an emergency in December and then shut down the government to try to force a legislative solution. That would have been dubious for all sorts of reasons but at least it would have had a coherent this-can’t-wait-another-second “emergency” rationale.
Although if he had done that, you can imagine a judge’s first question: Is it really an “emergency” if the solution is a years-long construction process that won’t even begin for months?
Here’s Rubio calling an emergency decree a “terrible” idea and claiming he’ll “fight” it if Trump issues one. Mm hmm. We’ll see. While you watch, ruminate on this: Arguably the scariest revelation of the shutdown process based on various reporting is that Jared Kushner really did convince himself there’d be meaningful Democratic support in Congress for Trump’s “BRIDGE Act for wall” compromise proposal 10 days ago. It’s one thing to have a Democrat as your (de facto) chief of staff, it’s another to have a guy who can’t count votes in Congress. Although maybe it doesn’t matter now that it’s clear that Trump and Pelosi won’t be cooperating on anything over the next 21 months. Even Jared can count to zero.
ICYMI: Sen. Marco Rubio (R-Fla.) says the president declaring a national emergency to get border wall funding is a "terrible idea."@marcorubio: "It's just not a good precedent to set." #MTP pic.twitter.com/WOtiKooV0q
— Meet the Press (@MeetThePress) January 28, 2019