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Terry H. Schwadron

Feb. 5, 2019

Already, it seems that President Trump has trashed any outcome for the congressional shutdown showdown this week as inadequate to meet his singular demand for a physical wall. The committee should report out by the end of this week to give time for passage of any compromise by next week’s Friday deadline.

Even as the president prepares to lecture Congress and the nation tonight in the delayed State of the Union that bipartisanship is the lantern in the dark, he masks his true intention. To Trump, the sneering presumption is that his view represents the only answer.

For an Art of the Deal guy, he does not seem to know how to negotiate. His answer is the only one possible. To gain his objective, the president is talking about declaring a national “emergency,” which allows a broad constitutional right to do whatever he sees fit. That path, too, will run into a political buzzsaw.

The promise was that the committee would return to the Homeland Security sources for a more detailed look at what is needed sector by sector along the border, and find appropriate tools for the appropriate problem. Trump scotched that thought by simply insisting on a more generalized magic wand to build whatever he wants.

The only practical alternative is that either Congress or the president must simply realize it cannot get the votes to do what it wants, and to back off legislatively. Political egos being supreme, the chances of that are nil. So, we might look at the couple of big snags in the way of agreement that actually could be legislative attempts to stop Trump.

The first snag arises from the idea that the only thing that seemingly can unite Congress is the use of powers that further enable the president’s discretion at the hands of Congress’ rights. Congress itself, or certainly individual congress members, will undoubtedly be among those who go to court to stop an emergency declaration, should Trump choose to pursue it. Passage of a bill in the House to protect legislative powers over the budget would trigger an automatic must-call vote in the Senate, where Republicans might just split in support of what would be seen as an anti-Trump vote.

A second snag is that Congress in both parties wants to avoid a repeat of furloughing federal workers, something that an emergency declaration might allow. That one is creating strong enough sentiment that even Senate Majority LeaderMitch McConnell, R-KY, said last week that he is open to legislation that would prevent future government shutdowns.

“I don’t like shutdowns. I don’t think they work for anybody and I hope they will be avoided. I’d be open to anything that we could agree on a bipartisan basis that would make them pretty hard to occur again,” McConnell said.

To avoid a shutdown that McConnell describes as an example of “government dysfunction” and “embarrassing,” a growing number of senators say they would support legislation that would prevent future government shutdowns by automatically creating a continuing resolution (CR). There are competing proposals in the Senate, with Sens. Rob Portman, R-OH, and Mark Warner, D-VA, both introducing legislation.

Portman’s proposal would reduce funding by 1% after 120 days and again every subsequent 90 days if lawmakers haven’t reached a deal. Warner’s would withhold funding for the legislative branch and the Executive Office of the President in an attempt to motivate lawmakers to negotiate.

Curiously, the idea of automatically creating such a continuing budget resolution, ran into backlash from House Majority Leader Steny Hoyer (D-Md.) told reporters that he was “reticent” about legislation that would take Congress out of the decision-making process.

At least on principle, then, you might think Republicans might prefer an emergency declaration, to avoid a shutdown. But they are not that much more inclined to support a declaration of national emergency and a radical expansion of eminent domain powers than a second shutdown. They are both bad options, as Politico reported.

For those who want a very long read about the history of the emergency powers discussion, the Atlantic monthly has a current articleon the subject.

Politico quoted Sen. Mitt Romney, R-UT, “I don’t think we want to face another shutdown. And I certainly don’t think we want to have emergency action taken. So, the president and Congress will have to come together.” North Carolina Republican Sen. Thom Tillis told the Hill, “You can’t be in a national emergency forever. For us to totally secure the border, that’s a multiyear proposition.” Sen. Marco Rubio — who stands to lose hurricane-relief funding — tweeted, “I do not believe the White House will divert money from #Florida disaster recovery to fund border security. But if some reason they try, I will do everything I can to overturn such a decision.” Rubio has also said, “There’s some concern … about how [an emergency declaration] could be used by future presidents for other reasons.”

As Slate argued, given the reality that many Americans are as opposed to a declaration of national emergency as they were to the shutdown, it might behoove Republicans in the Senate to find out whether the new attorney general, William P. Barr, plans to greenlight whatever power grab the president plans to grant himself. Barr declined to answer that question during hearings, or in additional written questions submitted to the Senate Judiciary Committee.

Further, Slate concluded, if Republican senators really wanted to stop this national emergency declaration from happening, all they would have to do is promise to veto any attorney general nominee, such as Barr, who refuses to reject the possibility.

Senate Republicans have no good option here between allowing another shutdown to happen and allowing the president to declare a national emergency without consequence.

Democrats, on the other hand, do have some flexibility in actually including some element of wall into their more targeted proposals for border security. Perhaps there is one section of border for which fencing or slats is appropriate for a mile or two.

Personally, I think the betting is high that no one really is looking very hard at an compromise that intends to win over or persuade foes.


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