Trump Backs Away From ‘National Emergency’ Option As Shutdown Enters Record Territory

President Trump appears to be backing away from the idea of declaring a national emergency to get his wall built. But the other options he's considering aren't much better.

President Trump is apparently backing away from threats to declare a “national emergency” to get his border wall built:

WASHINGTON — President Trump has stepped back from declaring a national emergency to pay for a border wall, under pressure from congressional Republicans, his own lawyers and advisers, who say using it as a way out of the government shutdown does not justify the precedent it would set and the legal questions it could raise.

“If today the national emergency is border security, tomorrow the national emergency might be climate change,” Senator Marco Rubio of Florida, one of the idea’s critics, said this week. Another Republican, Senator Mitt Romney of Utah, told an interviewer that declaring a national emergency should be reserved for “the most extreme circumstances.”

Mr. Trump, who according to aides has grown increasingly frustrated over the refusal of Democrats to bend and sees the shutdown as a road with no off-ramp in sight, hinted on Friday that the warnings were having an effect.

“What we’re not looking to do right now is national emergency,” he told reporters gathered in the Cabinet Room as the shutdown approached its fourth week. Minutes later he contradicted himself, saying that he would declare a state of emergency if he had to.

As Speaker Nancy Pelosi and Senator Chuck Schumer, the minority leader, have proved immune to Mr. Trump’s threats, the idea of using the president’s constitutional powers to declare an emergency has received close scrutiny in the White House because it would enable Mr. Trump to obtain the $5.7 billion he has sought for construction of a wall without the approval of Congress.

Instead, Mr. Trump would use his authority to transfer funds to the wall that were appropriated by Congress for other purposes. Toward that end, the Army Corps of Engineers has been directed to study whether it can divert about $13.9 billion in emergency aide set aside for Puerto Rico, Florida, Texas and California. And with the money secured, the president could drop his opposition to the appropriations bills whose passage would end the shutdown.

That would allow Mr. Trump to say he had never backed down from his fight with congressional Democrats or abandoned his pledge to build the wall even if the construction became tied up in legal challenges.

Former White House aides, who noted that Mr. Trump did not focus on the wall during the first two years of his presidency, said the optics of fighting for the wall were more important to the president than erecting it.

But opposition has come from many Republican quarters. Some conservatives see it as an unacceptable extension of executive power. Kellyanne Conway, a White House aide, has said it would essentially give Congress a pass. Representative Mike Simpson, Republican of Idaho and a member of the House Appropriations Committee, said it was not clear to him that an emergency declaration would even lead to the prompt reopening of the government.

He called it “a bad escape hatch” that was going to anger many House members.

Mr. Trump’s reluctance is also frustrating allies ginning him up to take action. “If it’s a crisis, treat it like a crisis,” Stephen K. Bannon, the former chief White House strategist, said in an interview. “His best option now is to declare a national security emergency and get on with it.”

On Thursday, Mr. Trump traveled to the border in Texas to dramatize his support for a wall but used a photo-op along the banks of the Rio Grande on Thursday only to repeat his familiar arguments for building it. He sidestepped the issue when Sean Hannity, the Fox News host, asked him in an interview that night to detail what a national emergency would look like.

“There’s some compromise needed,” Mr. Trump said.

But Mr. Trump, who allies said was eager to spend time at his Mar-a-Lago club in Florida and resented the advice of aides to deliver an Oval Office address and travel to Texas on Thursday, is left with few good options.

As he searches for a way to end the political stalemate with Democratic lawmakers, Mr. Trump is finding himself boxed in, in a familiar position when it comes to immigration issues. Former aides say that is because he conflates legal and policy issues with public relations campaigns and does not anticipate an endgame.

This news contradicts reports yesterday and Thursday that seemed to indicate that the President was leaning toward the idea of a “national emergency” due to the fact that there clearly didn’t seem like there was any way that Congress was going to give in on border wall funding. According to those reports, Trump was leaning this way even though legal advisers were advising against it due to the fact that such a move was most likely illegal and because of the bad precedent it would set. Notwithstanding that, Trump seemed to be leaning toward the idea that taking such action would allow him to ‘save face’ by saying he did something to try to get the wall built but had been stopped by the courts. In the meantime, he could have signed legislation reopening the government that didn’t fund the border wall. In that manner, I suppose, he could both claim to his supporters that he had done what he could for the wall and singlehandedly reopened the government, even though it’s obvious that he was the reason the government closed. Given the fact that polling is making clear that the public is blaming the President for the shutdown, it’s unlikely that they’d be stupid enough to fall for this kind of spin.

This leaves the second option that the President is apparently considering, the idea of diverting money allocated for other purposes to pay for the border wall. As I explained yesterday, this would also seem to be a violation of the law:

As for the second proposal to use money that Congress has allocated to the Defense Department to build the wall, even though Congress has not explicitly organized such an action. As with the idea of a “national emergency,” while there are arguably some provisions of law that might permit this, the balance of Federal law says exactly the opposite, For example, this action would seem to directly violate long-standing Federal laws regarding the Federal budget such as the Federal Budget And Accounting Act and the Congressional Budget And Impoundment Act of 1974. The first law basically restates the Constitutional fact that Congress controls the purse strings and that the Executive Branch cannot spend money in a manner not authorized by Congress. The second strengthened those laws and limited the ability of the President to do things like refuse to spend allocated funds or use funds in an unauthorized manner. What all this means is that this move, which would fall short of declaring a “national emergency” would also end up in Court and would likely result in any action taken by the Trump Administration put on hold for the foreseeable future.

The fact that something isn’t necessarily legal has never stopped the President before. We’ve seen this in connection with his Muslim Travel Ban, his efforts to ban transgender troops from serving in the military, his efforts to punish so-called ‘sanctuary cities, his family separation and asylum policies on the southern border, and his efforts to end the Deferred Action for Childhood Arrivals (DACA) program, this President has seen his policy proposals blocked, scaled back, or completely barred by the Federal Courts on a scale unseen by previous Administration. In several cases, these decisions have even come from Judges appointed by previous Republican Presidents and, in at least one case, by Trump himself. Invariably, the President’s public reaction has been to attack the judiciary just as he attacked the Mexican-American Judge presiding over the Trump University during the campaign. I suppose one can respond to this by saying that Trump at least has not responded to these decisions by refusing to comply with them as his hero Andrew Jackson did, but the only honest response one can give to this is “yet.”

At the same time the White House considers its options, the shutdown continues. As James Joyner noted this morning it has now become the longest shutdown in American history, surpassing even the twenty-one day shutdown of December 1995-January 1996 during the first year of joint rule by President Clinton and a Republican Congress. In that case, the shutdown ended in no small part due to the fact that Republicans began to realize that they were being harmed by the ongoing crisis. Now, we have polls showing that the President is suffering politically but he doesn’t seem to care. Instead, he is thriving on the opposition and seems to be settling in for a prolonged battle even though he has no weapons left.

FILED UNDER: Borders and Immigration, Congress, Deficit and Debt, Law and the Courts, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. With Trump’s historical links to Russian finance, maybe the Kremlin will get him out of another pickle!

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  2. Teve says:

    The climate crisis is an actual emergency. So go ahead and set this precedent, Donnie.

    I wonder if Trump’s supporters realize that just the eminent domain lawsuits alone would hold up any significant construction on the wall for at least a decade, by which time it would be canceled anyhow.

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  3. CSK says:

    @Teve:
    Good question. I think they’d say that Trump tried his best, but all those Obama-appointed judges stymied him.

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  4. Slugger says:

    As I have said before, pay no attention to what Trump says. His statements are always transactional intended to bluff or make you leap at a lowball bid. Mexico is not paying for a wall. NAFTA is not the worst deal in history with USMAC the best. He does not know more about ISIS than all the generals. Hillary is not going to jail. We are not just pulling out of Syria. Feel free to come up with your own favorite examples. The most charitable way to regard a Trumpism is to see it as the equivalent of a coach’s remarks before the Super Bowl.
    And stop reporting that he’s angry. He is always angry; that’s the default setting.

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  5. Michael Reynolds says:

    It’s getting fun now. What the Trumpies haven’t quite figured out is that Trump is no longer trying to actually get a wall, he’s just trying to cook up a cover story for his failure. There will be no wall.

    But we absolutely must leave his sample walls standing as a monument to the stupidity of this man and his idiot supporters. They could be a sort of counterpoint to Mount Rushmore. In fact, what if we expanded on his abject failure to create a whole complex devoted to political folly? Loser Land? It could be an ironic theme park, with actors in costume as Nixon waving peace signs and repeating, “I am not a crook.”

    For older visitors or young kids who don’t like thrill rides, there’d be the James Buchanan ride in which you just sit in a roller coaster car which doesn’t move as war looms. The George W. Bush shooting gallery where the trick is to always hit the wrong target. And sure, let’s have some more recent Democrats, you could have the Bill Clinton guess-that-stain competition.

    I’m off to apply for copyright protection on this.

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  6. James Pearce says:

    Former White House aides, who noted that Mr. Trump did not focus on the wall during the first two years of his presidency, said the optics of fighting for the wall were more important to the president than erecting it.

    Someone tell Chuck and Nancy…

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  7. mattbernius says:

    @James Pearce:

    Someone tell Chuck and Nancy…

    New flash James: they already know. In fact, their strategy is based around that fact and the belief that *the optics of fighting for the wall were more important to the president than doing things that will help Republicans win future elections.*

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  8. Kathy says:

    While this sounds good, I’ll believe Dennison won’t declare an emergency when the government reopens and he has a new obsession to take up his copious spare time.

    Remember he cancelled the Summit with his North Korean crush? then went and held it. He ordered all troops out of Syria, then walked it back.

    I don’t think there’s any sort of tactical or strategic importance to anything he says, not even in his own idiosyncratic, moronic way. No. he simply is impulsive and says things without thinking. Not without thinking them through (would that were the problem), but rather as described by Ford Prefect in The Hitchhiker’s Guide to the Galaxy: if he doesn’t keep exercising his lips, his brain starts working.

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  9. @James Pearce:

    I’m pretty sure they know

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  10. Sleeping Dog says:

    @Doug

    …it’s unlikely that they’d be stupid enough to fall for this kind of spin.

    The Trumpian 40%, or is it now 38%, will fall for it, see Pearce already has.

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  11. James Pearce says:

    @mattbernius:

    In fact, their strategy is based around that fact

    Their strategy is based on the idea that the mid-terms were a “blue wave” and that they were now better positioned to “resist” the Trump administration.

    If they understood that Trump was more interested in “the optics of fighting for the wall…than erecting it,” they wouldn’t have set themselves up for the fight. It was a trap.

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  12. dazedandconfused says:

    @James Pearce:

    Sometimes the best thing to do with a trap is to fall into it. Donald and Nancy have mutually agreed to have this as their Alamo, and they now await the public to decide who will be Davy Crockett and who will be Santa Ana. McConnell is probably waiting for that as well.

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  13. Lit3Bolt says:

    @James Pearce:
    Shorter James Pearce:
    Donald Trump is an idiot.
    “Genius!”
    Donald Trump is racist.
    “Mi capitan!”
    Donald Trump is a grifter.
    “Both sides, nyah!”
    Donald Trump is a huckster who plays well with rubes.
    “I am intelligentsia.”
    Donald Trump is a traitor who sold US intelligence to Russia.
    “*Glenn Greenwald-style bat-screeching ensues*”

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  14. An Interested Party says:

    It was a trap.

    Well, considering the ineptness of the person who set the trap, it makes sense that he is losing the fight that his trap set up…

    ReplyReply

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