THE NEW YORKER
Is Donald Trump About to Declare a National Emergency at the Border?
By John Cassidy
January 8, 2019
Last Friday, as the government shutdown headed for a third week, reports emerged that Donald Trump was thinking about declaring a national emergency at the southern border, with the goal of circumventing the deadlock in Congress and diverting some Pentagon funds to the construction of a wall, or a steel barrier. During a press conference at the White House, Trump confirmed that he had considered invoking emergency powers and added, “I can do it if I want.” When a reporter asked if that was a threat to Democrats, who are refusing his demands for $5.6 billion in funding for the wall, Trump replied, “I’d never threaten anybody, but I am allowed to do that, yes.”
On Sunday, at Camp David, Trump returned to the theme, saying, “I may declare a national emergency dependent on what’s going to happen over the next few days.” When he got back to the White House, he added, “We have a national emergency, just read the papers. We have a crisis at the border, of drugs, of human beings being trafficked all over the world, they’re coming through . . . criminals and gang members coming through. It is national security. It is a national emergency.”
Trump’s description of what is happening on the border is largely fictitious, of course. (In a television interview on Sunday, the White House spokesperson, Sarah Huckabee Sanders, claimed that four thousand people who are on a terrorism watch list had been stopped at the southern border. On Monday, NBC reported that, in the first half of the 2018 fiscal year, the actual number of people stopped for this reason was six.) But Trump isn’t dealing with reality. In a tweet on Monday afternoon, he said that he would deliver a televised address from the Oval Office on Tuesday, the first of his Presidency, “on the Humanitarian and National Security crisis on our Southern Border.”
In a press briefing at the White House, Vice-President Mike Pence and Kirstjen Nielsen, the Secretary of Homeland Security, repeatedly used the same phrase. Pence told reporters that Trump hadn’t yet decided whether to declare an emergency, but he also said that the Office of the White House Counsel was looking into the possible options available to the President. On Monday evening, the Washington Post reported that “Trump increasingly views a national emergency declaration as a viable, if risky, way for him to build a portion of his long-promised barrier, according to senior administration officials.”
It seems increasingly likely, therefore, that Trump is going to use Tuesday night’s Oval Office address either to invoke an emergency, which would immediately plunge him into another legal and constitutional battle, or to formalize his threat to act if the Democrats don’t give in to his demands very quickly. Either way, he appears set to escalate the fight over the border wall in dramatic fashion, and Democrats are already getting prepared. “We would certainly oppose any attempt by the President to make himself a king and a tyrant by saying that he can appropriate money without Congress,” Jerry Nadler, the new chair of the House Judiciary Committee, said on Monday, during a visit to a Customs and Border Protection Agency detention center in Alamogordo, New Mexico. “That is perhaps the most dangerous thing he is talking about since he became President.”
On the other side of the political divide, the prospect of Trump making such a move drew mixed reactions. John Cornyn, a Republican senator from Texas, sounded a note of caution. “I’m confident he could declare a national emergency,” Cornyn said on CNN. “But what that may mean in terms of adding new elements to this—court hearings and litigation that may carry this on for weeks and months and years—to me, injecting a new element in this just makes it more complicated.” But some of Trump’s supporters openly welcomed the prospect of him seizing emergency powers. “What I like is that the President is not backing down,” Fox News’s Sean Hannity said on his daily radio show. “He’s looking for any alternative source of money, so we can get the job done.”
In a way, these latest developments aren’t entirely surprising. Ever since parts of the government began to shut down, three days before Christmas, people in Washington and elsewhere have been wondering how Trump would go about extricating himself from the political hole he has dug for himself. During his now famous Oval Office meeting with the Democratic leaders Nancy Pelosi and Chuck Schumer, on December 11th, he said, “I’ll tell you what, I am proud to shut down the government for border security, Chuck.” Once the shutdown began, it was always going to be a struggle for him to shift the blame to the Democrats. For the past couple of weeks, Schumer has been barely able to conceal a smile, and his language has got steadily tougher. On Monday, he again dismissed the possibility of giving in to Trump’s financial demands, saying such a cave would “create a disaster and encourage his worst instincts, which are bad enough now.”
Initially, the shutdown served Trump’s purposes, because it sent a signal to his most ardent anti-immigrant supporters, whose backing he will desperately need during the months ahead. But government closures usually get more unpopular the longer they go on, and if this one extends beyond this weekend it will be the longest shutdown in the past fifty years. Despite Trump’s public insistence that even many of the federal employees who have been furloughed or forced to work without pay are supporting him, he is surely aware where things are heading. “In a private meeting with aides at Camp David on Sunday, Mr. Trump said he wanted them to come up with a resolution without him appearing to have capitulated to Democrats,” the Wall Street Journal reported on Monday. The story added that “White House officials disputed that account and said the president didn’t make such a statement.”
Whether he did or he didn’t say such a thing, Trump clearly needs an exit strategy, and he may believe he has found one. On Twitter, Eric Columbus, a Washington lawyer with experience in the Obama Administration and with the Senate Judiciary Committee, pointed out that if Trump declares a national emergency, he might be able to obtain some money for his wall even as the matter is litigated, which would enable him to “re-open the government while saving face—and if he later loses in court he’ll have a new scapegoat.” As a description of Trump’s strategizing, this sounded plausible. We’ll find out on Tuesday night if he goes through with it.