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.