The Shutdown and Emergency Powers

By Dan Cadman on January 9, 2019

So here we are heading toward the third week of a partial government shutdown because the president has drawn a line in the sand saying, "No border barrier funding, no appropriations law." Would that he had drawn that line previously, when he gave in and signed budget bills into law despite having a majority of his own party in both chambers of Congress. It was a mistake, as was his mini-waffle this time, which virtually guaranteed both sides would lock into intransigence.

The president is now suggesting that he will use his powers to declare a national emergency to build a border barrier, presumably using other pots of money from places such as the Defense Department. I don't know enough about those emergency powers at this point to speak with any authority on the matter, although others have weighed in on both sides of the equation saying he can, or he can't.

One Democratic representative acknowledged that such powers have been used to build facilities with existing appropriated funds — but then went on to say that this was for facilities in Afghanistan and Iraq, not the southern U.S. border, and thus was clearly a legitimate exercise of presidential power. Wait, what? Does anyone else see a problem with that statement? It's okay to spend taxpayer money to construct things in the Middle East and South Asia, but not in our own backyard, the very gateway to our nation, where security is clearly an issue?

That isn't the only laughable hypocrisy I've heard, though. For instance, Democratic Reps. Joaquin Castro and Jerrold Nadler have in recent days waxed eloquent about the impropriety and outrageous violation of constitutional norms by a president doing an end-around of the legislature by circumventing their authorities. Oh, wait, didn't their own President Obama do that with the DACA program — the one he said that he didn't have the right to create out of whole cloth? I don't recall Nadler or Castro, or in fact any Democrat, being so outspoken about that outrageous power grab and end-around of the Article I authorities vested in Congress by the Constitution.

Where all this will end up, I'm not sure, but I sincerely hope it isn't with a Son-of-Gang-of-Eight bill that negotiates away real border security for future promises and faux fixes in return for "amnesty now". We've seen that before, too. It happened in 1986 when Ronald Reagan delivered to us the "amnesty to end all amnesties" and yet here we are, 32 years later with 11 or 12 million aliens living and working illegally in the United States and more pouring in daily.

If President Trump were to decide to declare the emergency, order immediate commencement of construction, and then comport himself as President Obama did about DACA, then the wall would get built and be in place long before the endless litigation ever came to an end. What a great turnabout. It's tempting isn't it?