Does anyone care about long-term consequences for precedents set in the short term any more? I thought this argument died when Harry Reid pursued the nuclear option in the Senate to allow Barack Obama to stack the DC Circuit. Nevertheless, Sen. Marco Rubio gamely raises the point about loosening the standards for presidential emergency declarations as Donald Trump considers the option during his visit to the border. Today it’s national security on the southern frontier, Rubio tells CNBC’s Squawk Box, but Trump won’t be president forever. Tomorrow it might be climate change and the Green New Deal:
A national emergency declaration by President Donald Trump over border security could wind up hurting Republicans, GOP Sen. Marco Rubio told CNBC on Wednesday.
The Florida Republican contended that Trump was elected on the promise of building a wall along the U.S.-Mexico border and the president has to “keep that promise.” But “we have to be careful about endorsing broad uses of executive power,” he added. “I’m not prepared to endorse that right now.”
Such a declaration would set a precedent, Rubio said. “If today, the national emergency is border security … tomorrow the national emergency might be climate change.”
That may be a wee bit of a stretch, as any Green New Deal implemented by emergency declaration would be seriously limited anyway. Emergency declarations don’t give presidents much authority over the private sector, as the Supreme Court decided in Youngstown, and most of that progressive pipe dream focuses on shutting down the fossil-fuel industry. The ability to repurpose federal spending may even be debatable with an executive-branch declaration, which would strip the legislative branch of its main authority to direct funding.
That doesn’t mean it wouldn’t matter at all. A climate-change emergency declaration might be enough to, say, void all oil and gas exploration/extraction leases on federal land, which is handled through the executive branch. That would put one hell of a dent in our production capabilities, and there might be more ways in which a White House could act under emergency powers to force an end to the use of fossil fuels for energy. When setting unusual precedents, it’s tough to foresee how all of the consequences will unfold. Just ask Chuck Schumer.
Rubio sounds as pessimistic as Allahpundit did earlier about a deal coming in the next few days, too. He says that a trade for DACA won’t work now, a point I made in my column at The Week this morning. Both sides have hiked expectations so high that they have become walls themselves:
A year ago, a solution seemed ready to emerge when the shutdown shoe was on the other foot. Schumer forced that standoff over the Deferred Action for Childhood Arrivals (DACA) program, as it appeared the courts might intervene to allow Trump to shut it down. Talks began on trading a statutory version of DACA in exchange for more robust funding for a border-barrier system, along with asylum and visa policy changes. Schumer had to cave on the shutdown when it became apparent it wouldn’t work, but the courts then punted on DACA for the short term, taking the pressure off Democrats to save it.
Without that pressure, they have no incentive to make a deal that includes border-wall funding. In fact, the midterm election results appear to give Pelosi a mandate to confront Trump across the board, especially on the border wall. Trump himself added to that perception by making border security his top message in the midterms, which ended up falling flat. If Pelosi is seen to give Trump what he wants on the wall without some dramatic concessions in return, she’ll face a revolt among the rank and file as well as the progressive activists that aren’t entirely thrilled with her leadership anyway. And after all the high drama of an 18-day shutdown, DACA won’t be a big enough concession.
What about Trump? He has no incentive to back down either. He will have no chance at all at getting border-wall funding in the next two budget cycles if he retreats now. Trump might believe that he has no chance of winning re-election if he caves to Pelosi and Schumer on his central policy, and he may well be right. Trump is also dropping hints that he may use a declaration of emergency to use funds at the Pentagon to build the wall. If Trump sees that as a realistic option — it has significant legal hurdles but isn’t entirely impossible — then he has no incentive to cross no-man’s-land either.
So what will end it? Rubio thinks it will be the pressure to pay federal workers. That will only be enough when it starts impacting secondary and tertiary areas of the economy, however. The pain has to spread farther than a few hundred thousand people first:
At this point, none of the party leaders appear to have any interest in compromise, nor do they have any incentives to make a deal. The rank and file in Congress might, however, as more and more disruption occurs from the partial shutdown. Federal employees who don’t get their paychecks won’t spend money, creating secondary and tertiary effects in their communities. Those employees whose functions are critical will start finding ways not to show up for work. If that starts happening at TSA, it could create widespread chaos in air travel with even more economic impacts, starting with the airlines themselves. When that reaches critical mass, enough political pressure will come to bear on Capitol Hill to craft funding authorizations with veto-proof majorities.
Get ready for a long, perhaps unending standoff over the border.