Trump's 'National Emergency' Gambit May Be The Easiest End To The Shutdown

The most likely action for Congress is inaction.

WASHINGTON ― The partial government shutdown is about to stretch past its third week. Republicans and Democrats have basically stopped negotiating. Yet, members and aides on Capitol Hill believe a solution is imminent.

It’s not that there’s going to be a legislative breakthrough. It’s more that everyone now recognizes there is no deal to be made ― not when President Donald Trump won’t come down from his $5.7 billion figure for border wall construction, conservatives oppose a larger immigration deal, and Democrats don’t trust and won’t accept any offer but full capitulation.

Instead, the solution to the impasse seems to be Trump declaring a national emergency at the border, using a dubious authority to reprogram military construction money for the wall, and then Congress passing clean funding legislation ― without wall money ― while Trump’s executive maneuver gets tied up in court.

Trump has moved from toying with the idea of a national emergency declaration to all but promising it. He said Thursday that, if negotiations don’t work out, “probably I will do it. I would almost say definitely.”

Three senior GOP aides said Thursday that they expect Trump to declare a national emergency as a way of getting out of the shutdown, though all said they hadn’t heard anything specific about timing. And while there’s been a scramble among some lawmakers to put together a deal involving the Deferred Action for Childhood Arrivals immigration program in exchange for wall funding, that offer seems to be dead on arrival.

President Donald Trump declaring a national emergency to build a border wall may be the easiest way to end the partial government shutdown.
President Donald Trump declaring a national emergency to build a border wall may be the easiest way to end the partial government shutdown.
JIM WATSON via Getty Images

According to Politico, the chief architect of a DACA deal, Sen. Lindsey Graham (R-S.C.), has all but given up. “I think we’re stuck. I just don’t see a pathway forward. I don’t see a way forward,” Graham said Thursday. “I have never been more depressed about moving forward than I am right now.”

So with the grand immigration bargain falling apart before it ever came together, and with Trump stuck on $5.7 billion for the wall and Democrats stuck on $0, the logical conclusion for most lawmakers is Trump acting through executive power.

Specifically, Trump would use existing authority to reprogram unspent funds for military construction ― or redesignate funds earmarked for ongoing projects ― and build his wall that way. There’s believed to be about $13 billion floating around in the military construction budget that hasn’t been spent, along with $10 billion in new money for projects in fiscal 2019 ― more than enough for Trump to get started on his border wall. In effect, however, the move would be challenged in court immediately, tied up for years potentially.

If there were enough backlash in Congress, Democrats and Republicans could team up to pass legislation blocking Trump’s use of the military construction fund for his wall. But initial reactions from Republicans have skewed more toward support, or at least not opposition, for Trump declaring a national emergency to subvert Congress.

On Thursday evening, Graham tweeted his support of Trump using an emergency declaration to build the wall.

“Hopefully negotiations will work, but if the Democrats refuse to negotiate, I don’t think the president has much of a choice [but to use his executive power].”

- Rep. Jody Hice (R-Ga.)

And House Republicans were just as deferential Thursday when HuffPost continued asking members about Trump potentially using his executive power to build the wall.

“Hopefully negotiations will work, but if the Democrats refuse to negotiate, I don’t think the president has much of a choice,” Rep. Jody Hice (R-Ga.), a member of the conservative House Freedom Caucus, said Thursday.

And even among those who said they would “prefer” Congress fund the wall ― members such as Reps. David Schweikert (R-Ariz.) and Phil Roe (R-Tenn.) ― no one was willing to lay out what repercussions they would support if Trump acted on his own.

HuffPost repeatedly asked Rep. Elise Stefanik (R-N.Y.) on Thursday whether she opposed the president declaring a national emergency to build the wall, and she repeatedly restated her position that “Congress needs to do our job” without actually answering the question. (She actually offered some variation of “Congress needs to assert its authority” or “Congress needs to do our job” five times when HuffPost asked if she opposed the president declaring an emergency.)

The point is, Republicans may not love Trump going around Congress, but they don’t seem willing to do anything real to block him at this time.

On top of that reluctance to openly oppose Trump, lawmakers see the utility of Trump claiming victory and reopening government, with neither side actually giving an inch. Trump would not get to build his wall ― at least not until a court said so ― and Democrats would get to end the shutdown without giving the president a dollar.

The difficulty is such an arrangement will inevitably derail future appropriations talks, as Democrats would push for riders blocking Trump’s authority to reprogram money and the president wouldn’t sign a bill undercutting his ability to unilaterally build his wall, even if the ultimate decision was for the courts.

Basically, we’d just be deferring the fight for the time being. But such a move seems like the least messy option as more than 800,000 government workers continue to go without paychecks.

HuffPost readers: Are you affected by the government shutdown? Email us about it. If you’re willing to be interviewed, please provide a phone number.

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