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It says a lot about the workings of the US government that it was Senate majority leader Mitch McConnell who first announced to the nation that president Donald Trump would declare a national emergency to build his border wall.
The Kentucky senator made the shock announcement on Thursday afternoon on the Senate floor, following several phonecalls throughout the day with the president. Reportedly, the usually low-key senator thought it best to publicly announce the decision lest Trump change his mind again.
The surprise decision by Trump to declare a national emergency was not expected in Washington this week. On the contrary, all indications were that he would explore all avenues of executive action, just shy of declaring a national emergency, to secure some extra money for his proposed wall.
But by Thursday, as Conservative commentators such as Ann Coulter and Fox News's Sean Hannity decried the budget deal struck by Congress, which gave the president $1.375 billion (€1.2 billion) for his border wall, far less than the $5.7 billion requested, Trump had made up his mind.
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Despite advice from senior Republicans such as McConnell not to declare a national emergency amid distinct unease from many Republicans that it could set a precedent for future Democratic presidents, Trump indicated that he would sign the spending bill only if he also invoked extra executive powers.
Faced with a prospect of another government shutdown at midnight on Friday, McConnell and others had little choice but to assent.
Executive powers
Trump’s decision to sign the Bill but to also use executive powers to reallocate money from three other sources, may have averted another government shutdown. But it threatens to spark a major constitutional and legal crisis.
The first challenge for the Trump administration will be Congressional. Under the 1976 law allowing US presidents to declare national emergencies, Congress has the power to pass a joint resolution of termination if it believes the president is acting irresponsibly.
Democrats are widely expected to instigate such a measure and it is likely to pass in the House of Representatives given the party’s control of the chamber. This would oblige the Senate to bring a Bill to a vote within 18 days. While Republicans have a majority in the Senate, enough Republicans may side with Democrats to support it.
This would mean that the president would have to veto the Bill in order to proceed with his emergency declaration. There is still a further check, however: that veto could be overridden if a two-thirds majority in both chambers opposed it. Notwithstanding deep Republican unease about the measure, however, the Senate is unlikely to muster a two-third majority to frustrate the president.
The other challenge will be in the courts. Trump’s move to cast immigration as a national emergency can be subject to legal challenges by parties affected by the decision – landowners in the border area, for example. Democrats may decide to join such suits, or mount their own legal bid, though this is less likely given the reluctance of the courts to allow one branch of US government to sue another.
Legal gamble
It is likely that Trump's move will end up at the supreme court, where the issue will be a constitutional one, as justices mull the question of how much power is invested in the president. Given the recent appointment of Brett Kavanaugh to the court, a justice with an expansive view of the executive powers of the president, the Trump administration may believe that their legal gamble has a chance of success.
Ultimately, there is no specific definition of what constitutes an emergency declaration, even if the spirit of the relevant 1976 Act was to give presidents the tools to act quickly at times of national emergencies.
Trump ended up signing a Bill that he had essentially already been offered in December
Strategically, Trump may feel that the declaration of a national emergency is a risk worth taking, particularly given that the issue may not be resolved in the courts before his presidential term ends. But being able to tell his base that he tried to build his wall but the project was frustrated first by Congress and then the courts, may be just the reasoning he needs in the 2020 election.
In the immediate term, the saga over the government funding bill and the border wall is a poor reflection on Trump’s governance skills. Ultimately he ended up signing a Bill that he had essentially already been offered in December, before he abruptly decided not to sign it, triggering a shutdown.
Still hurting in the polls over the 35-day government shutdown, Trump finds himself invoking powers he could have deployed two months ago. The president who boasts of his deal-making skills has been exposed as a man who has misjudged the reality of ruling under divided government.