Donald Trump has already lost the government shutdown fight that he stupidly picked, and only now are Republicans in Congress beginning to realize just how much of a disaster this is going to be for them.
Several dozen House Republicans may cross the aisle this week to vote for Democratic bills to reopen shuttered parts of the federal government, spurring the White House into a dramatic effort to stem potential GOP defections.
White House officials and Republican congressional leaders worry that GOP support for the shutdown is eroding, weakening President Donald Trump’s hand as he seeks billions of dollars for a border wall that Democrats have vowed to oppose, according to GOP lawmakers and aides.
Hoping to sway skeptics in his party and the broader public, Trump will make an Oval Office address Tuesday night to discuss what he called the “Humanitarian and National Security Crisis on our Southern Border," he announced on Twitter. That will be followed by a Trump trip to the border region on Thursday.
Vice President Mike Pence and Homeland Security Secretary Kirstjen Nielsen will address House Republicans on Tuesday evening. The House on Wednesday is scheduled to vote on a Democratic bill designed to fund the IRS and several other agencies, the first of four bills Democrats hope to use to peel off Trump's GOP support in the House.
Without more money, the IRS could have a problem processing tax refunds. Russ Vought, acting director of the Office of Management and Budget, reversed course on Monday and said refunds will be paid out, another move by the White House to ameliorate the impact of the shutdown.
It's very possible that Trump's primetime address tonight isn't to sell the Democrats on the wall, or even to declare a national emergency. Maybe it's to sell his base on losing the wall fight. If that's the case, tonight ought to be a lot of fun for the Democrats.
On the other hand, the kinds of things Trump can do right now under existing national emergency scenarios is outright frightening.
The premise underlying emergency powers is simple: The government’s ordinary powers might be insufficient in a crisis, and amending the law to provide greater ones might be too slow and cumbersome. Emergency powers are meant to give the government a temporary boost until the emergency passes or there is time to change the law through normal legislative processes.
Unlike the modern constitutions of many other countries, which specify when and how a state of emergency may be declared and which rights may be suspended, the U.S. Constitution itself includes no comprehensive separate regime for emergencies. Those few powers it does contain for dealing with certain urgent threats, it assigns to Congress, not the president. For instance, it lets Congress suspend the writ of habeas corpus—that is, allow government officials to imprison people without judicial review—“when in Cases of Rebellion or Invasion the public Safety may require it” and “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”
Nonetheless, some legal scholars believe that the Constitution gives the president inherent emergency powers by making him commander in chief of the armed forces, or by vesting in him a broad, undefined “executive Power.” At key points in American history, presidents have cited inherent constitutional powers when taking drastic actions that were not authorized—or, in some cases, were explicitly prohibited—by Congress. Notorious examples include Franklin D. Roosevelt’s internment of U.S. citizens and residents of Japanese descent during World War II and George W. Bush’s programs of warrantless wiretapping and torture after the 9/11 terrorist attacks. Abraham Lincoln conceded that his unilateral suspension of habeas corpus during the Civil War was constitutionally questionable, but defended it as necessary to preserve the Union.
The Supreme Court has often upheld such actions or found ways to avoid reviewing them, at least while the crisis was in progress. Rulings such as Youngstown Sheet & Tube Company v. Sawyer, in which the Court invalidated President Harry Truman’s bid to take over steel mills during the Korean War, have been the exception. And while those exceptions have outlined important limiting principles, the outer boundary of the president’s constitutional authority during emergencies remains poorly defined.
Presidents can also rely on a cornucopia of powers provided by Congress, which has historically been the principal source of emergency authority for the executive branch. Throughout the late 18th and 19th centuries, Congress passed laws to give the president additional leeway during military, economic, and labor crises. A more formalized approach evolved in the early 20th century, when Congress legislated powers that would lie dormant until the president activated them by declaring a national emergency. These statutory authorities began to pile up—and because presidents had little incentive to terminate states of emergency once declared, these piled up too. By the 1970s, hundreds of statutory emergency powers, and four clearly obsolete states of emergency, were in effect. For instance, the national emergency that Truman declared in 1950, during the Korean War, remained in place and was being used to help prosecute the war in Vietnam.
Aiming to rein in this proliferation, Congress passed the National Emergencies Act in 1976. Under this law, the president still has complete discretion to issue an emergency declaration—but he must specify in the declaration which powers he intends to use, issue public updates if he decides to invoke additional powers, and report to Congress on the government’s emergency-related expenditures every six months. The state of emergency expires after a year unless the president renews it, and the Senate and the House must meet every six months while the emergency is in effect “to consider a vote” on termination.
By any objective measure, the law has failed. Thirty states of emergency are in effect today—several times more than when the act was passed. Most have been renewed for years on end. And during the 40 years the law has been in place, Congress has not met even once, let alone every six months, to vote on whether to end them.
As a result, the president has access to emergency powers contained in 123 statutory provisions, as recently calculated by the Brennan Center for Justice at NYU School of Law, where I work. These laws address a broad range of matters, from military composition to agricultural exports to public contracts. For the most part, the president is free to use any of them; the National Emergencies Act doesn’t require that the powers invoked relate to the nature of the emergency. Even if the crisis at hand is, say, a nationwide crop blight, the president may activate the law that allows the secretary of transportation to requisition any privately owned vessel at sea. Many other laws permit the executive branch to take extraordinary action under specified conditions, such as war and domestic upheaval, regardless of whether a national emergency has been declared.
So yeah, if Trump wanted to, he could do a lot. He hasn't.