Will the Longest Shutdown in US History End in a Power Grab?

On Saturday, the government shutdown reached day 22 and became the longest government shutdown in US history.

Since the 1970s, government shutdowns have been a way of life in Washington, occurring every few years. The current intractable shutdown over the president’s demand for $5 billion for a border wall has been marked by repeated failed negotiations, and it’s increasingly hard to see where this could all end.

President Trump has repeatedly floated the idea of declaring a national emergency in order to circumvent normal budget processes and get the money for the wall. And in recent days, analysts have increasingly suggested that this may be the most plausible way to end the shutdown, which has forced 800,000 government employees to either stay home or work without pay.

Past shutdowns have always ended with negotiated deals. Using a declaration of emergency to end a government shutdown — regardless of whether it even worked at all — would be an unprecedented and authoritarian move that could open the door to a host of alarming future scenarios in which a president might use this power to shut down electronic communication or freeze bank accounts.

How Previous Shutdowns Have Ended

If the intractability of government shutdowns can be measured by their duration, then the next hardest one to solve before this one was the 21-day shutdown in 1995 under President Bill Clinton. That shutdown was over a host of disagreements – Republicans wanted spending and tax cuts and a balanced budget, and President Clinton wanted to defend programs like Medicare, Medicaid and education spending. After 21 days, Republicans moderated their demands for spending and tax cuts, and President Clinton proposed a new plan for a balanced budget.

The next longest shutdown in 1978, at 18 days long, was one of the earlier shutdowns of the modern era, when shutdowns became common following legislation that gave Congress more power over budgeting. This shutdown happened because President Carter objected to congressional approval for spending on an aircraft carrier and public works projects that he viewed as pork barrel spending. In the end, President Carter won, and those items were not included in the budget.

The third-longest shutdown lasted for 16 days in 2013, when congressional Republicans tried to defund the Affordable Care Act (ACA) before it took effect. President Obama naturally opposed any such legislation, and a shutdown ensued. President Obama emerged a clear winner when the final deal left the ACA intact.

If these three examples make it seem like presidents usually come out on top after government shutdowns, the truth is more complicated. Even short-term victories often turn out to be long-term failures, and when shutdowns happen over issues where both sides have deeply held moral convictions (like abortion), shutdowns tend to have no clear winner. Which one of these models best matches the current shutdown remains to be seen.

Is a Shutdown Deal Possible in 2019?

Negotiators and observers have floated a number of possible deals, ranging from splitting the difference with wall funding of $2.5 billion, a wall that’s more like a fence, border security measures like new lighting and sensors, or a broader immigration deal that would secure a path to citizenship for the much fought-over Dreamers, or recipients of DACA (Deferred Action for Childhood Arrivals) program, as well as funding for a wall.

So far, none of these possibilities have gained real traction, and many have been shut down outright by either the president, the Democrats, or both.

In recent days, one of the most often-discussed ways to end the shutdown is no deal at all. The possibility that the president could try to get border wall funding through declaring a national emergency over the objections of Democrats seems a real possibility.

Is Declaring a National Emergency Legal?

As Marjorie Cohn recently forcefully argued in Truthout, “in the Appropriations Clause, the Constitution gives Congress, not the president, the power to authorize expenditures of federal funds.” If Trump declared a national emergency in order to secure funds that Congress has declined to make available, it would be an alarming abuse of power.

However, it is not entirely clear how current US courts would actually rule on the legality of declaring a national emergency, and their decision could depend on details like what specific legal authority the president’s team cites for the declaration. A lawsuit against a national emergency declaration by the president could go all the way to the Supreme Court, where it’s unclear what the final ruling could be, since some members of the Court might prefer not to set a precedent that would limit presidential power for years to come. But the possibility of a court battle while the government reopens has still been seen as a means to end the shutdown and provide a political win for the president, even if he ultimately loses in court.

Presidents declare national emergencies all the time, and there are currently 31 active national emergencies on the books. The vast majority of these implemented sanctions against foreign governments, or those the US deems terrorists or international criminals.

Many pundits viewed the president’s televised national speech describing the southern border as a “crisis” situation as laying the groundwork for national emergency declaration. The president has repeatedly (though inconsistently) claimed that he would declare a national emergency over the border fight.

This time Democrats are likely to launch an immediate lawsuit over any declaration the president makes, despite the president’s declaration that such a declaration is “100 percent” within his legal powers.

Where Would the Funds Come From?

Most reports have involved the president reallocating money from the Pentagon. That money could come from a pool of $23 billion originally budgeted for the Army Corps of Engineers for a widely varied range of construction projects. One proposal would take funds from flood control and other measures following hurricane-related flooding and wildfires in Puerto Rico, Texas and California. Another proposal would take the funds from more routine construction of facilities like air traffic control towers and ammunition storage facilities.

There is also a much smaller pool of $700 million under the military budget allocated for counter-drug efforts at the border, which could be repurposed.

This National Emergency Could Have Long-Term Consequences

Lawmakers in both major parties have warned about the precedent that a national emergency declaration could set. Republican Sen. Marco Rubio warned that, “If today, the national emergency is border security … tomorrow the national emergency might be climate change.”

While some Democrats have seemed to endorse the idea of opening such a precedent for climate change, Democratic leaders have made clear their opposition.

In an alarming analysis, Elizabeth Goitein of the Brennan Center for Justice laid out the danger of unmitigated presidential declarations of emergency. Goitein warns that US laws could, in some circumstances, allow a president to declare a national emergency that would allow him (or her) to take drastic actions like cutting off electronic communications or freezing Americans’ bank accounts, or even deploying military troops within the United States.

Such an authoritarian nightmare might seem far off, but do we really want to find out?

The Best Way Out Is No Wall

Democrats have long offered $1.6 billion toward border security measures. Meanwhile, the entire cost of the wall is estimated at closer to $25 billion. Clearly, there’s no magic in the number $5 billion. Making 800,000 government employees suffer is a cynical political move on the president’s part.

Americans are mostly against building a wall, and a majority believe that $5 billion could be put to better use. The best resolution is for the government to reopen with the $1.6 billion in border funds Democrats have offered. And the only way to get there is for congressional Republicans to say enough is enough. Senate Majority Leader Mitch McConnell certainly won’t do that without pressure. But it may be the only option.