According to a report from CNN this week, President Trump is growing impatient with the shutdown and, in particular, the refusal on the part of House Democrats to come to the table for reasonable negotiations. Thus, he may be on track to go back to an idea he floated in the early days of the shutdown: Declaring a national emergency, which would free up nearly $7 billion in unspent Pentagon funding that could be used to begin construction on the wall. According to CNN, the White House is already preparing a draft proclamation for the president to do just that.
“The massive amount of aliens who unlawfully enter the United States each day is a direct threat to the safety and security of our nation and constitutes a national emergency,” the draft reads. “Now, therefore, I, Donald J. Trump, by the authority vested in me by the Constitution and the laws of the United States of America, including the National Emergencies Act (50 U.S.C 1601, et seq.), hereby declare that a national emergency exists at the southern border of the United States.”
“I have other alternatives if I have to and I’ll use those alternatives if I have to,” Trump said Thursday after two bills to end the shutdown failed in the Senate. “A lot of people want this to happen. The military wants this to happen. This is a virtual invasion of our country.”
Some Democrats have said that Trump does not have the authority to follow through with this plan.
“Look, if Harry Truman couldn’t nationalize the steel industry during wartime, this President doesn’t have the power to declare an emergency and build a multibillion dollar wall on the border,” Rep. Adam Schiff said in early January. “So that’s a non-starter.”
But Schiff is hardly what you’d call an expert on the Constitution or the broad powers of the Executive Branch. And there are significant differences between Truman’s attempt to nationalize the steel industry during the Korean War and Trump’s attempt to directly protect the United States mainland.
“The safeguard you think is there in the National Emergencies Act turns out not to be there, or at least most constitutional scholars who have looked at that question closely think that the Supreme Court would never go for it, especially now that we have a Supreme Court with two new members who are unusually deferential to executive power,” liberal Princeton professor Kim Lane Scheppele told Vox this week. “It could be that actually nobody could tell him no.”
Oh, we’re sure there are some kooks on the 9th Circuit who will do just that. But once it winds its way to the high court, the Democrats may realize that they don’t have the #Resistance power they thought they had.