[Marxism] Trump’s Emergency Powers Threat Could End Shutdown Crisis, but at What Cost?

Louis Proyect lnp3 at panix.com
Thu Jan 10 06:01:15 MST 2019

NY Times, Jan. 10, 2019
Trump’s Emergency Powers Threat Could End Shutdown Crisis, but at What Cost?
By Charlie Savage

WASHINGTON — President Trump’s repeated threat to declare a national 
emergency so he can build his border wall without congressional approval 
has been denounced by Democrats as extreme and an overreach. But it 
could be the only politically realistic way out of the shutdown crisis 
in the nation’s capital.

“I think we might work a deal, and if we don’t, I may go that route. I 
have the absolute right to do national emergency if I want,” Mr. Trump 
told reporters on Wednesday. “My threshold will be if I can’t make a 
deal with people that are unreasonable.”

If the president does invoke emergency powers to circumvent Congress, it 
would be an extraordinary violation of constitutional norms — and 
establish a precedent for presidents who fail to win approval for 
funding a policy goal.

But Mr. Trump’s threatened move offers both sides a face-saving solution 
in the budget standoff between the president and congressional Democrats 
that has prompted a partial government shutdown, which, if it lasts to 
Saturday, will be at 22 days the longest in American history.

Both sides have taken absolutist positions that leave no room for the 
kind of split-the-difference compromise that usually ends budget 
impasses. Mr. Trump refuses to accept anything less than his demand for 
about $5 billion in wall spending, and House Speaker Nancy Pelosi has 
said his wall along the southern border would be immoral.

But Mr. Trump’s claim that he can and may attempt to build his wall 
another way opens the door for him to sign a spending bill with no wall 
funding, reopening the government without capitulation by either side.

While any such move by Mr. Trump is certain to prompt outrage from his 
critics and wild approval from his supporters, there is good reason to 
believe that it is unlikely to result in much immediate change. His push 
for a wall would be channeled into a lengthy court fight, keeping 
lawyers far busier than construction workers, at least initially, as his 
term ticks away.

“We’re going to be in 2020 before this gets resolved,” said Walter E. 
Dellinger III, a former solicitor general in the Clinton administration, 
adding: “If they are just planning where to build slats, judges are 
unlikely to decide that requires expedition in the Supreme Court. I 
think they would recognize the wisdom of going slow.”

If, in the end, the Supreme Court were to rule that emergency-power laws 
give Mr. Trump authority to proceed, he would probably face still more 
litigation with property owners over whether the government may use 
eminent domain to force them to sell their border lands. There may be 
little time left in his term after all that to add more than a few 
miles, if any, of barriers to the 1,954-mile border, which already has 
654 miles of fencing.

And if the court instead eventually ruled against him, Mr. Trump could 
honestly tell his supporters that he tried, and then vow to renew the 
push if he is re-elected. Indeed, he has suggested that he would relish 
still having the issue of wall to once again rev up supporters in the 
campaign. He wrote on Twitter late last month that Democrats may have 
enough votes to stop his wall, “but we have the issue, Border Security. 

In the meantime, the shutdown that is threatening to last for months 
could end. Hundreds of thousands of federal workers and contractors 
could once again receive their wages and pay household bills. National 
parks could reopen and be cleaned. Needy families could keep receiving 
food assistance. Across the economy, farmers and businesses that depend 
on government actions could proceed with work they need to be handled.

“It’s a way to get past an ugly fight in a way that allows the dust to 
settle and passions to cool while moving on,” said Bruce Buchanan, an 
emeritus professor of political science at the University of Texas at 

If Mr. Trump does invoke emergency powers, fierce criticism would 
follow. Of the 58 times presidents have declared emergencies since 
Congress reformed emergency-powers laws in 1976, none involved funding a 
policy goal after failing to win congressional approval. Chris Edelson, 
an American University government professor and author of a 2013 book, 
“Emergency Presidential Power: From the Drafting of the Constitution to 
the War on Terror,” said he could recall no such instance in the first 
two centuries of American history, either.

The precedent Mr. Trump would establish raises the risk of longer-term 
damage to the American constitutional system, undermining people’s 
confidence in the country’s democracy, said Elizabeth Goitein, who 
oversaw a recent study of presidential emergency powers for the Brennan 
Center for Justice at New York University School of Law.

“It is a crisis when the president of the United States flouts the role 
of Congress and abuses his powers in order to get around the will of 
Congress and to undermine the democratic process for lawmaking set forth 
in the Constitution,” she said.

Ms. Goitein and other experts who have studied emergency-powers laws 
have said there are serious — if not dispositive — arguments that Mr. 
Trump’s legal team can make that at least two such statutes could be 
used to erect border barriers by redirecting military construction funds 
that can be freed up, in a presidentially declared emergency, to build 
something Congress has not approved.

But she and others maintain that it would be an abuse of power for Mr. 
Trump to proclaim that there is a national emergency along the southern 
border that justifies a wall. The number of people illegally crossing 
the border is far lower than it was a generation ago. The recent 
phenomenon of caravans of Central American migrants largely consists of 
people who present themselves to border officials and request asylum.

And despite repeated false claims by Trump officials that terrorists are 
infiltrating the country across the border, including by the thousands, 
no one in the modern era who committed a terrorist attack on domestic 
soil has turned out to have sneaked in via Mexico.

Many legal experts nevertheless expect that in the inevitable 
litigation, the Justice Department would pressure judges not to even 
consider the facts, arguing that courts must defer to the president’s 
judgment about whether an emergency exists rather than substituting 
their own thinking.

But even though courts have traditionally given substantial deference to 
the president’s determinations in security matters, Mr. Dellinger said 
that should not be true within the executive branch. He said it was the 
obligation of senior Justice Department officials who review the 
legality of proposed government actions — the head of the Office of 
Legal Counsel, Steven A. Engel, and the acting attorney general, Matthew 
G. Whitaker — to independently assess whether there really is a 
justifiable basis to declare an emergency, and if there is not, to tell 
Mr. Trump no, or resign.

“If there is not, in fact, a persuasive basis for this being the kind of 
national emergency that was contemplated by Congress, and it is 
nevertheless approved by the Department of Justice, what is the 
rule-of-law cost? What kind of slope does that start us down?” Mr. 
Dellinger said. “One question is whether there is some other way out of 
this current mess that doesn’t involve such a cost to the rule of law.”

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