After days of the longest US government shutdown in history, President Donald Trump is considering declaring a national emergency that would likely escalate the policy dispute with Democrats over his proposed US-Mexico border wall into a court test of presidential power, Reuters reported.
Trump suggested strongly on January 10th that he might declare an emergency so that he can bypass Congress to get funding for his wall, which was a central promise of his 2016 election campaign. He originally pledged Mexico would pay for the wall, which he says is needed to stem the flow of illegal immigrants and drugs. After the Mexican government’s refusal to pay, Trump is now demanding that Congress provide $5.7 billion of US taxpayers’ money to fund the wall.
Democrats in Congress have defied the proposal, describing the wall as an ineffective, outdated answer to a complex problem. The dispute has led to a quarter of the federal government being closed down and hundreds of thousands of federal employees staying home on furlough or working for no pay and set to miss their paychecks. The partial federal government shutdown entered its 21st day on January 11th and on January 12th will become the longest shutdown ever.
With no Capitol Hill compromise in sight, Trump publicly weighed up the possibility of declaring an emergency, during a trip to the Texas border on January 10th. A close Trump confidant said that time for such a step had come. Republican Senator Lindsey Graham said in a statement, "It is time for President Trump to use emergency powers to fund the construction of a border wall/barrier. I hope it works."
The Wall Street Journal, NBC and the Washington Post, citing unnamed sources, reported that the White House had asked the US Army Corps of Engineers to look into diverting money from its budget toward the wall and to explore how fast construction could begin under an emergency declaration.
Critics of the national emergency strategy have said it may be illegal. In any case, it is almost certain to trigger an immediate court challenge from Democrats, including an accusation of trying to circumvent Congress' power over the national purse strings.
That would push the wall impasse into the court, allowing the government to be fully reopened while the judges weigh the case, which could take months. "After the emergency announcement, the path toward construction via executive order may be as unclear as a storm at midnight. But it will at least allow the president to move out of the corner he’s boxed himself into," said Charles Gabriel, analyst at strategy firm Capital Alpha Partners.
Partial government funding expired on Dec. 22nd, leaving departments ranging from Justice, Agriculture and Treasury to Commerce and Homeland Security without money to operate programmes and pay their workers.
An emergency declaration would come with risks. Even some of Trump's fellow Republicans in Congress have signalled their worries about such an action. Given that the Constitution gives Congress the power to set spending priorities and appropriate money, they worry about a tough legal fight and an unwise precedent. "If Trump crosses this Rubicon, what would prevent a Democratic president from declaring a 'national emergency' on Day 1 of their administration on climate change and/or healthcare?" Chris Krueger, an analyst at strategy firm Cowen Washington Research Group, asked in a commentary note.
“Declaring a national emergency would be wrong, but I think that's his only way out,” said Senator Joe Manchin, a moderate Democrat who has had good relations with Trump. If Trump made the declaration, Congress would immediately move to pass bills funding the various agencies, knowing that the president would then be able to sign them into law, Manchin predicted.
While some Republican senators have begun clamouring for an end to the shutdown, party leaders toeing Trump's line this week have ignored the passage in the Democratic-controlled House of Representatives of funding bills for government agencies. The House was expected to pass more such bills on January 11th.