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Trump's dangerous "national emergency" gambit: Can he get away with it?

Faced with an endless shutdown and decaying support, Donald Trump could order the military to build the wall


Heather Digby Parton
January 7, 2019 2:30PM (UTC)

We are in the third week of the Trump shutdown and reality is starting to bite. According to the Washington Post, nobody in the White House had given any consideration to the consequences of a protracted standoff, and were surprised that it resulted in actual disruption and human suffering. That report concludes that administration officials are now focused "on understanding the scope of the consequences and determining whether there is anything they can do to intervene." It's not going well.

Meanwhile, our national parks are drowning in toxic human waste, security lines at the airport are miserable with TSA agents refusing to work for no pay and even airline pilots are begging the president to stop the insanity. That's just the beginning. At the end of this week federal workers all over the country will miss their paychecks and may start to run out of funds for food and housing.

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President Trump insists that federal workers are happy to go without pay in order for him to get his wall. He says they'll "adjust." After all, he can relate:

I don't think I have to explain how absurd that is.

As their first order of business, House Democrats passed the Senate bill which allows the government to reopen by funding the Department of Homeland Security through Feb. 8 and the rest of the government through the end of the year. That would end the shutdown while they try to work something out on this inane wall issue. Trump had signaled support for that very deal, you'll recall, until Ann Coulter and Rush Limbaugh scared him into submission. Now he's stuck with a shutdown he obviously thought he could bluff his way through.

And from the looks of things, Trump's allies in the Senate are terrified of Coulter and Limbaugh too. Sen. Lindsey Graham, R-S.C., was formerly a driving force behind bipartisan comprehensive immigration reform but has now joined the screaming banshee caucus, telling Trump that caving in on the wall would end his presidency and hysterically demanding that Democrats sideline negotiators who "see the Border Patrol agents as gassing children." I don't know who he's talking about but it's worthwhile to point out that Graham once understood that Trump's wall was folly. During the 2016 campaign he said, "Donald Trump’s plan on immigration is stupid. I find him offensive. ... I think the wall Donald Trump is building is between us and Hispanics."

Right now Trump seems to be trying a two-pronged strategy. The first step is this preposterous notion that he's offering a big "compromise" by building a wall made of steel rather than concrete, as if that had ever been any kind of sticking point. The man who wrote "The Art of the Deal" seems to think that rather than offering any real concessions in a negotiation he can just make up something the other side never wanted and give it to them. No wonder his businesses went bankrupt four times and he was reduced to marketing his name on cheap consumer goods and playing the fictional character of "Donald Trump" on TV.

If that doesn't work (and it won't) he's threatening to declare a national security state of emergency and unilaterally deploy troops with Pentagon funding to build the wall. This is a shocking idea, but it shouldn't be too much of a surprise. After all, Trump invoked a rarely used national security provision in trade law to unilaterally slap tariffs on steel and aluminum.  His recent deployment of troops to the border in response to the so-called threat of poor and desperate women and children seeking asylum is another example. He has already demonstrated a willingness to declare a phony national security crisis which he will then "solve" by invoking extraordinary powers granted to the presidency. There is little reason to doubt he will do it in this case.

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Of course, there is no crisis. According to the Pew poll, unauthorized immigration and refugee claims are way down from their historic levels, as is the share of undocumented workers in the labor force. Even Fox News was compelled to challenge the White House on its numbers over the weekend.

The so-called terrorist threat at the border is even more fatuous than the administration's claims about rampant criminal behavior by immigrants. This latest hysteria began with Trump's baseless assertion that "Middle Easterners" were marching on the border with the migrant caravan, which suggests this "national security" gambit has been in the works for a while.

Nonetheless, there's a school of thought that says this is really Trump's best way out. He can declare himself a strong leader and a big winner while essentially punting the decision to the courts, allowing the government to reopen while the legal issues are hashed out. There is considerable disagreement as to whether or not he will ultimately prevail.

Yale law professor Bruce Ackerman writes in the New York Times that if Trump goes through with using the military for this purpose he would be committing an unconstitutional abuse of his power as commander in chief, adding that if troops obey his command, they'd be committing a federal crime. But according to this chilling article by Elizabeth Goitein in The Atlantic, any president's ability to evoke these sorts of emergency powers is practically unfettered. After all, Congress has delegated these powers to the president for decades -- and for decades presidents have pushed the envelope in dozens of different ways. This time we may finally have a president who is willing to do it for blatant political purposes and dare anyone who opposes him to do something about it.

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There is a long history of judicial deference to the executive branch on national security issues. It will ultimately be up to the five conservative Supreme Court justices to decide if they have the power to step in when the president is clearly concocting a fraudulent emergency for his own reasons. I wouldn't bet money on them making the right decision.

We can be sure that Democrats in Congress will raise a fuss but unless they are willing to push for an article of impeachment for abuse of power (which they clearly have a right to do) the best we can hope for is that the clock runs out on his term before the court produces an opinion. Validating this action would set a very bad precedent.


Heather Digby Parton

Heather Digby Parton, also known as "Digby," is a contributing writer to Salon. She was the winner of the 2014 Hillman Prize for Opinion and Analysis Journalism.

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