• Ryan O'Connell

Nancy, Don’t Break Out the Champagne Yet

It’s not over until the fat man caves. The War Over the Wall is not over; there’s just a lull in the fighting. The armistice will last for three weeks, so Donald Trump can give his State of the Union speech on February 5, but then what?

Trump still does not appear to accept the principle that he must share power with Congress. This is a deep-seated conflict over immigration policy, of course, but it’s also a fight about the proper roles of the executive branch and Congress. Speaker Nancy Pelosi and Senator Chuck Schumer have infuriated Trump by insisting that he defer to Congress on budgetary matters.

Up until now, Congress, and Congress alone, has wielded the “power of the purse”. The administration must lobby Congress to request money for a project or program. If Congress does not authorize the necessary funds, the White House cannot proceed with that particular initiative. The executive branch must defer to Congress; it cannot simply divert funds from other sources to pay for pet projects.

This is a key element of the balance of power mandated by the Constitution. The Founding Fathers viewed Congress’ power of the purse as a fundamental check on the power of the president. Some presidents have fumed about this, but they have all respected the principle…until Donald Trump arrived on the scene.

When Trump announced that he was re-opening the government last Friday, he explicitly threatened, again, to do an end run around Congress if the House won’t appropriate the funds for the Wall. At his press conference a reporter asked the president if he was still considering the option of declaring a national emergency:

“Yes, I have [considered it], and I can do it if I want... I may do it. We can call a national emergency and build it [the wall] very quickly.”

Trump...Keeping His Options Open

In his view, Trump can defy Congress’ will, which has been very clearly expressed on the Wall issue. But by declaring an emergency, particularly on such trumped-up grounds, the president would usurp Congress’ power of the purse and inflict great damage on Constitutional principles. If a president can declare a national emergency because Congress refuses to appropriate a paltry $5.7 billion for a project, what would be the limit on his power? (That's “paltry” in the context of the federal budget, which exceeds $4 trillion).

Just in case anyone missed the point, Mick Mulvaney, the acting White House chief of staff, said on Sunday in an appearance on Fox News, “The president’s commitment is to defend the nation, and he will do it either with or without Congress.” That’s a remarkable statement from a former Representative, but Republican leaders don’t seem particularly eager to defend Congress’ prerogatives at this point. Sen. Mitch McConnell was virtually in hiding during the shutdown.

Fortunately, a recent poll by Monmouth University indicates that two-thirds of Americans would disapprove if Trump used emergency powers to divert funds to building a wall. But here’s the bad news: one-third of Americans and 71% of Republicans would support such a move.

The only “emergency” that Trump is really worried about, of course, is not being re-elected. So there is a huge risk that Trump could declare a national emergency, on the reasonable assumption that the Base will go along with that. So far, Jared Kushner has convinced Trump not to declare an emergency, but he’s a slim reed to lean on.

If Trump goes that route, he would precipitate a Constitutional crisis, by mounting a direct assault on our balance of powers. The scary part is, he might get away with it.

The Wall Street Democrat

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