Finally realizing how unpopular the shutdown is, Individual 1 and his team are looking for ways to get out of it without losing face. The declaration of a national emergency Trump is reportedly planning to announce in Tuesday night's Oval Office speech is one way—and an illegal (not to mention terrifying) way, at that. But it's not the only example of the Trump administration resorting to illegal means to find their way out of the government shutdown, or minimize its effects.
The administration has announced that it will keep national parks open using furloughed employees, and pay tax refunds using money designated for other programs. Both proposals are likely illegal. In the case of the IRS, the Wall Street Journal quotes acting Office of Management and Budget director Russell Vought saying the administration wants to make the shutdown as "painless as possible consistent with law." That means reversing the legal determination by the administration and its predecessors that refunds can’t be paid while the Treasury Department is shut down, because refund payments are not required to protect life or government property. The IRS itself, in its plans for this shutdown, said that "issuing refunds" was among the activities it could not perform during the shutdown.
Former President Obama's senior OMB official Sam Berger sees no legal justification for reversing this determination."There's no new information here. […] The only new information we have here is that Donald Trump and the White House are concerned about the political fallout from the impacts of the shutdown." Moving forward on this opens the administration up to legal challenges, because that's the only thing this administration has proved adept at—collecting lawsuits against itself.
Likewise, the National Park Service (NPS) has been directed by acting Interior Secretary David Bernhardt to "immediately utilize" funds collected from entrance fees to address" restrooms and sanitation, trash collection, road maintenance, campground operations, law-enforcement and emergency operations, at staffing entrance gates." They're supposed to use those funds "until they've reached a zero balance."
This decision, apparently made without consultation with any regional NPS directors or superintendents, is at the very least legally questionable. "President Trump and his advisers apparently just woke up to the fact that the shutdown they created several weeks ago has done terrible damage to our country," said Rep. Raul Grijalva of Arizona, the incoming chair of the House Natural Resources Committee. The funds from entrance fees are collected under the Federal Lands Recreation Enhancement Act (FLREA) and are intended to go toward the massive $12 billion worth of deferred maintenance projects the parks already face, thanks to years of Republican budget cutting.
Rep. Betty McCollum of Minnesota, chairwoman of the Appropriations Interior subcommittee, called on Interior to close the parks. "The law is clear: if the federal government is shut down, our National Parks must also be closed to protect public safety and pristine spaces. It is not acceptable to use FLREA funds to keep the parks open, and the Department of the Interior's actions likely violate appropriations law," she said in a statement Monday.
One park, Joshua Tree, has finally been closed because of the rampant vandalism that's happened there in the three weeks since the shutdown. Without rangers present, visitors have left the paved roads in the park and carved new ones with ATVs, and have vandalized and defaced the park's namesake Joshua trees. "The way it looks right now because of resources or lack thereof, we have about eight rangers that oversee a large park, we will remain closed until appropriations are put into place to reopen," park spokesman George Land said Tuesday. They will maintain a presence of law enforcement rangers to patrol and to keep people out.
It should be noted these are the things Trump and his team notice as a problem for them—the parks and tax refunds—and not the dire consequences to those most directly effected. That includes all the federal employees and contractors who've lost their paychecks, the people whose food assistance is in question, and the people vulnerable to being evicted from their homes because of Trump's cruelty.