I’ll admit I’m caught up in the DC parlor game of speculating now that the Trump Shutdown 3.0 is over what happens after February 15th. I certainly don’t have a definitive answer, but I have theory worth exploring. Please come along.
Rightfully so, most congresses and presidents in the post-World War II era have been accused of kicking the can down the road instead of confronting issues. One way of looking at our current temporary government funding situation is to say it was another in the long series of kicking the can exercises. (What successful business would operate on a three week budget?)
When we come to February 15th Trump will most likely be presented with three options: accept the recommendation of the Congressional Committee (I think they will produce one), Trump Shutdown 4.0 or declare a national emergency and try to raid other appropriations to pay for his wall. Let’s briefly look at them.
The Committee is likely to report out a plan that will be acceptable to both parties but will undoubtedly not contain billions in funding for a border wall. Trump’s extreme right wing base will not accept that. I doubt that Trump has the political courage to stand up to them. Also, he will have hard line advisors, Stephen Miller the most prominent among them, urging him to reject the plan.
Mick Mulvaney’s smokescreen aside, I don’t think even Trump is politically inept enough to do another government shutdown so soon after his last failure. I suspect even someone with as little political instincts as Jared Kushner will feel that way. Remember, if the stories coming out of the White House are to be believed Kushner was Trump’s principle advisor in firing James Comey and the Trump Shutdown 3.0 both of which exploded in Trump’s face.
That leaves the national emergency route. If Trump declares a national emergency he takes the issue of wall funding out of Congress’ hands and a clean CR is a piece of cake. He will be challenged and almost undoubtedly lose in the lower courts who will issue a stay on raiding other funds for the wall. There will be no physical progress toward constructing a wall, but Trump really doesn’t care (he has plenty of other opportunities to “skim” money). His base will be placated because in their minds Trump is fighting for them (Make America White Again). Trump and his base will blame those liberal judges. The fact that Trump can’t even muster enough support among Congressional Republicans let alone Democrats to fund his wall is lost on them.
At some point the case will make its way to the Supreme Court. Their first decision will be whether to take it up or not. Unless there are conflicting lower court rulings the justices would be smart to refuse to take it up thereby not having to take a position on the issues. (The Supreme Court likes to kick the can a bit too.)
If they take it up the conservatives are in a difficult position. Neil Gorsuch and Brett Kavanaugh are particularly beholden to Trump and will not want to hand him a loss. There is a good chance that Samuel Alito and Clarence Thomas actually favor the wall. As Chief Justice, John Roberts has to have the legacy of “his Court” in the back of his mind whether he favors the wall or not. If heard, this is not a slam dunk 5-4 decision for Trump.
The case is much larger than a wall and will go a long way in defining the scope of executive authority to declare a national emergency which appears to be very expansive. If the Court gives Trump his wall what is to stop a future liberal president from declaring a national emergency and raiding all sorts of federal “piggy banks” for something the conservatives feel is rubbish, (i.e. climate change)? As we have seen with some of the Senate rule changes; what goes around comes around.
The other political advantage Trump gains by going this route is that he will again eat up a lot of time and put more “shiny objects” out in the press to distract from Russiagate and his other scandals. Remember the longer the delay the more money Trump lines his pockets with.
Like most political junkies I get a plethora of emails asking me to donate. Most of them get deleted without even being opened. Sunday I got one from Hawaii Senator Mazie Hirono that intrigued me to the extent that I had to read it. It called Trump’s presidency a “Shibai”. I didn’t know the word and was intrigued. It turns out that shibai is a Hawaiian word for hypocritical nonsense. This may be a rare case where Trump and America can both win; let’s just hope he goes that route. In a shibai who can predict what comes next?
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