Day 756: Trump set to make huge mistake and declare national emergency to try and get border wall

4 min readFeb 15, 2019

Donald Trump shut down the government for five weeks to get a border wall in December and January. He didn’t get it, and was forced to sign a continuing resolution, angering many on the right.

He told the leaders in both parties to negotiate a long-term government funding bill, including money for the border, or risk a national emergency being declared over the issue. The sides agreed to throw a paltry number towards a barrier, mostly to placate Trump. (At the current funding rate, Trump’s dream wall won’t be done for more than 40 years.)

Trump, remaining between a rock — another shutdown — and a hard place — not getting a border wall — decided to sign the funding bill and declare a national emergency for $8 billion worth of border wall, against the advice of Democrats and Republicans.

The GOP is terrified of the long-term implications of declaring an emergency about an inherently political issue. With a Democrat in the White House, they might declare a national emergency with regard to guns, healthcare or climate change. This would effectively allow them to bypass many of the legislative and funding rules traditionally necessary to get things done.

Additionally, in the near-term, Democrats are sure to challenge Trump’s declaration in court, likely delaying construction through many appeals. If the courts rule that the declaration was overstepping, Trump won’t get his wall at all. It will be on the government to show that a) there actually is a national emergency and b) a wall will solve it.

On the latter, there are serious questions regarding the efficacy of a wall. The majority of drugs and contraband enter through legal ports of entry. Most illegal immigrants arrive on legal visas and simply overstay them. The idea that the wall will stop millions of migrants crossing in the middle of the desert is a fallacy unsupported by facts.

On the former, one problem is that Trump hasn’t even been seeking all the funds necessary for a complete wall. He was seeking about 25 percent of what he claimed is necessary. It’s hard to justify an emergency and only solve a quarter of the issue. On top of that, Trump wanted Democrats and Republicans to solve the issue through legislation. Arguing to courts that it was a national emergency, but not so urgent that it couldn’t wait weeks or months for Congress to weigh in on is going to be a challenge.

He may also have to argue that the problem got worse on his watch. Because he never declared a national emergency prior to now, he’ll likely have to argue that the issue only recently reached emergency level. That would mean admitting that it was not an emergency before he took office — despite blustering on the campaign trail — but actually became one when he did.

But even before the matter reaches the judiciary, Speaker Nancy Pelosi (D-CA) may force Senate Republicans into a very uncomfortable position, potentially shutting down the national emergency re-appropriations before they get off the ground.

Republicans have good reason to be deeply nervous. Here’s why: According to one of the country’s leading experts on national emergencies, it appears that House Speaker Nancy Pelosi (D-Calif.) can trigger a process that could require the GOP-controlled Senate to hold a vote on such a declaration by Trump — which would put Senate Republicans in a horrible political position.

[In addition to the judicial route] Pelosi has a much more immediate way to challenge Trump’s declaration. Under the National Emergencies Act, or NEA, both chambers of Congress can pass a resolution terminating any presidentially declared national emergency.

Elizabeth Goitein, who has researched this topic extensively for the Brennan Center for Justice, tells me that if Pelosi exercises this option, it will ultimately require the Senate to vote on it in some form as well. The NEA stipulates that if one chamber (Pelosi’s House) passes such a resolution, which it easily could do, the other (McConnell’s Senate) must act on it within a very short time period — forcing GOP senators to choose whether to support it.

Alternatively, Goitein notes, the Senate could vote not to consider that resolution or change its rules to avoid such a vote. But in those scenarios, the Senate would, in effect, be voting to greenlight Trump’s emergency declaration.

GOP senators would have to decide between going on record in favor of a presidential declaration of a national emergency for something that everyone knows is based on false pretenses, a move that would be opposed by two-thirds of the country, or opposing it and possibly forcing a Trump veto (which they then would have to decide whether to override), enraging Trump’s base.

Trump has been warned by many people smarter than him not to declare a national emergency over this issue. Like so many previous times, he’s apparently going to ignore that advice at great political peril to himself and Republicans, all for a Hail Mary attempt to get a border wall that he swore Mexico would pay for.

756 days in, 706 to go

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