Declaring an Emergency Would Be a Terrible Idea

He will look weak, get nothing, be humiliated by a judge, and set a dangerous precedent for future Presidents.

There are reports that some of President Trump’s advisers are attempting to convince him to give up the shutdown fight by declaring an emergency, knowing the federal courts will reject the declaration. Their thinking is that the President could save face by claiming to take decisive action to build the wall while blaming federal judges for blocking his move with the government concurrently reopening.

The President must absolutely avoid doing this for several reasons.

First, if the President declared a national emergency, it undoubtedly would be stopped by a federal judge. The government would reopen, border security would not improve, and the President would get nothing. It would be a strategically boneheaded move.

Second, if the President did this, it would be setting a dangerous precedent. Precedents do matter here as even Barack Obama predicated his DACA decision on prior laws and executive precedents. If Donald Trump did this, he would be opening the door to future Democrat Presidents declaring climate change a national emergency and using monies to seize coal power plants, etc.

Some of the President’s supporters take the absurdly juvenile and stupid position that a future Democrat will do this anyway. But justifying a present action based on a future hypothetical is not just ignorant, it is a profound breach of sound public policy. I’m old enough to remember Democrats saying the Senate Democrats should kill the legislative filibuster too because surely the GOP would do it. It hasn’t happened.

Third, if the President maintains the shutdown instead of making a ridiculous declaration of national emergency, he can either get the Democrats to compromise or expose the disloyalty of Republican members of Congress for caving. The President will, in that case, maintain the support of his base.

Declaring the emergency, particularly given the President’s history of judges stymying his efforts, will be akin to saving face while surrendering. Everyone will know it is the President’s way of giving up and passing blame.

The reality is that President Trump should hold his ground. He should go to the border, as he is doing, and he should barnstorm the country making his case that the border needs to be secure. He should get his congressmen out there on the same page.

More importantly, the President should consider offering several compromises. He could offer the DACA compromise again from last February and suddenly make the Democrats the ones blocking the Dreamers from staying. He could offer a reduction in the money he wants. He could offer some alternative compromise. Be public in the options and sell the case to the American people that the Democrats are the ones refusing to compromise. If he makes the DACA case, he can easily make the case that it is clear the Democrats do not actually care about the Dreamers. They want the issue.

But above all else, the President must absolutely not surrender by an emergency declaration. He will look weak, get nothing, be humiliated by a judge, and set a dangerous precedent for future Presidents.

Comments
No. 1-9
Baby_Elephant
Baby_Elephant

If Trump were to lose in the courts how would that create a precedent that Democrats could exploit? Wouldn't he have to win in the courts to create a precedent they could use?

Dave_A
Dave_A

There is no chance that the Supreme Court would allow Trump to build a border wall without Congressional approval.

It's as silly as declaring a 'national emergency' to build a new interstate....

None of the existing 'national emergencies' sieze that quantity of private land or spend that amount of money (it's allot more than 5BN)....

Carolina Duffer
Carolina Duffer

So a federal judge at the trial level rules that Trump acted outside his authority under the National Emergencies Act. It would predictably be a judge in Hawai'i or California or New York. Then a federal appeals court would sustain that court's decision. Then the Supreme Court would bend the appeals court and the district court over its collective knee -- as it did with the restrictions on international travel to the US from certain countries -- and administer a thorough spanking.

We are currently still under 20+ "national emergencies" that are not being managed by the judiciary. I don't support this approach because I like the shutdown, but I wouldn't let errant idiot judges and the fear of their evanescent interference stop me.

ForAllAmericans
ForAllAmericans

So now you want him to throw congressional Republicans under the bus because you're realizing this is a fight he will never win. This is what you want to happen to your party? I beg you to think this through, the more Trumpy your party becomes the better it may be for my party but the worse it will get for America. There is no upside to this baby can't get his way administration. And even after getting slapped by the electorate you want to double down on Trumpyness?

DavidMKern
DavidMKern

Erick is right about this. The classic approach of the Republican establishment would be to declare an emergency, have it stopped by the courts, and then campaign on their attempt to do what their base wanted, even though everybody knew it was going to fail. It would be like the numerous show-votes taken purely for political cover or the continuing budget resolutions that are simply designed to change the channel.

Trump tends to float things that he has no intention of doing. Firing Mueller would be one example. Aborting NAFTA instead of renegotiating it is another. I think Trump is playing his hand to show the country that the Democrats have no intention of negotiating any deal to fix the real problems on the border. He picked Mike Pence to be the face man for that effort, because now it is Mike Pence the Dems are accusing of lying.

At some point, people have to make a decision about who is telling the truth. Did Trump really pound the table in anger at yesterday’s meeting as Schumer stated? Or as Pence and Kevin McCarthy stated, did Trump enter the meeting passing out candy, only to say bye-bye when Nancy Pelosi said that she wasn’t interested in any border control fixes, even if Trump would reopen the government?

Mike Pence is on record stating the Democrats have been asked to make a counter offer to Trump’s proposal and that they have absolutely refused to do so. Schumer thought he got the better of Trump when he tricked him into accepting blame for the shutdown. But Trump turned it around and said that if the only way he could get border security is to shut down the government, then he would do just that.

Getting somebody to negotiate with you who has no desire to do so is not an easy thing. I don’t think anybody ever thought a Mexican President would be standing next to Trump praising a NAFTA renegotiation, but it happened. Trump was also able to get Chairmen Kim shaking hands with President Moon, which also didn’t seem very likely. We will see if Chuck/Nancy will also submit to Trump’s use of leverage.