The conference committee negotiation government funding has emerged with its results, and, as expected, what Donald Trump is being offered in February is actually less than what he would have gotten had he signed the Senate bill that emerged with unanimous consent back in December. That’s because Mr. Master Dealmaker decided to set a big match to every bit of leverage he had, and in the process burned his Republican allies so badly that they want nothing to do with a second round of shutdowns. As lawmakers scribble down the final version of a bill that has less money and more constraints, Republicans are pressing hard for Trump to sign the results, no matter how little it includes for his
wall barrier fence. That’s because the one option still open to Trump is one that GOP legislators are terrified he might take.
Because there are still unallocated 2018 funds lingering out there in some military programs, including in disaster-relief funds managed by the Department of Defense, Trump could still choose to declare a national emergency to appropriate funds for his wall. He could have a shutdown and declare an emergency. He could even sign the bill coming through Congress and then still wander into the Rose Garden to declare an emergency. Any way, it would be a disaster. In the past, national emergency declarations have been used in situations such as the hours immediately following 9/11, when the White House has felt the need to move without waiting to see what Congress decides. What Trump would be doing in this case would be very, very different.
Trump would be declaring that even if the legislature debates and rejects an idea, an executive can still force it through anyway. That’s not just a huge and dangerous expansion of executive authority; it’s one that Republicans can all too easily see being used to gore all their sacred oxen. In particular, Democrats might choose to declare national emergencies over things that are much easier to justify than Scare Caravans! and Fake Prayer Rugs! on the border. Like gun violence. Like climate change.
That fear leads to another one. Should Trump declare an emergency, Nancy Pelosi can instantly bring a motion in the House to end that declaration. Then Democrats can send that motion to the Senate … where Republicans would have to vote on it. And as CNN reports, that’s a terrifying prospect for Republicans.
For all the times that Republicans complained that President Obama “overreached” or “sidestepped Congress,” Trump laying down an emergency because he doesn’t like the outcome in the legislative branch would be an open declaration of executive rule. A declaration that even some of Trump’s most ardent supporters in the House and Senate see as an inexcusable breach in the separation of powers.
Some Republicans, including right-right-wing Senator John Cornyn, are already going public with their opposition to an emergency declaration in the hope that they can ward off having to deal with a motion to override—a motion that some regard as a “political hand grenade.” With the conference committee bill being drafted for a vote before Friday, it’s a prospect that they could face at any time.
Of course, if Trump does declare an emergency over something that’s demonstrably not an emergency, and a topic that’s been debated in the Congress for months, it definitely does open the door to doing it again. And again. There are limits: Trump’s funding sources are restricted to select categories of military funds. Unless, of course, he decides to challenge Congress on that as well.
But Republicans can take heart over one thing: If Trump does declare an emergency, they can always pretend it never happened and any Democrat who tries to use the National Emergencies Act is the real threat to the Constitution. They've had lots of practice with that tactic.