At 3:26 p.m. Washington time Senate Majority Leader Mitch McConnell interrupted a speech by Iowa Senate Chuck Grassley on biofuels to announce that President Donald Trump would sign the deal worked out by the House and Senate to fund nine departments of the federal government and avoid another government shutdown on Friday. (If you can find a clip, I urge you to watch the video of Grassley screaming “You’re rude. You’re just simply rude” at McConnell when he’s interrupted. Grassley points out that he would have been finished in another five minutes.)
McConnell’s announcement came just before a procedural vote in the Senate to advance the spending bill. (The vote was a remarkable 84-15. Can you say, “Veto proof”?)
Ten minutes after McConnell’s announcement the White House issued a formal statement saying the President would sign the bill. In the words of White House Press Secretary Sarah Sanders “President Trump will sign the government funding bill, and as he has stated before, he will also take other executive action—including a national emergency—to ensure we stop the national security and humanitarian crisis at the border.”
McConnell immediately said that he would support the declaration of a national emergency (even though he had urged Trump not to pursue that policy in private discussions.)
The declaration of a national emergency will quickly wind up in the courts with Democrats arguing that there is no emergency that justifies a presidential attempt to move already ear-marked funds for a border wall.
Before those court challenges reach any kind of hearing let along a decision, the House of Representatives is almost certain to pass a “resolution of disapproval.” The National Emergencies Act of 1975 says that if one house of Congress votes a resolution of disapproval, the other house must vote on that resolution. In other words, a Democratic controlled House of Representatives can–and undoubtedly would–force the Republican Senate to go on the record as either approving an extraordinary assertion of presidential power or voting against a Republican President. If both houses pass a resolution of disapproval, President Trump could still veto the resolution. Which would require a two-third vote for an override of the veto. That’s extremely unlikely–if a resolution of disapproval got that far–in the Senate.
But the legal cases–and note the plural please–will be extraordinarily complex and detailed. The National Emergencies Act requires, first, the President to outline the specific emergency powers he is claiming under existing statues. In other words, even in the case of an emergency a president has to use existing statues to justify the actions he is undertaking.
And the math says that even if President Trump won his court case justifying the declaration of a national emergency, he is unlikely to end up with enough funding to build The Wall. The biggest pot of money would come from the Pentagon where the Secretary of Defense could “undertake military construction projects” which are “necessary to support such use of the armed forces.” (That would enable President Trump to divert money from, say, building or repairing housing on military bases to funding The Wall. The military construction budget his year is $10.3 billion. About $2.2 billion of that is targeted on spending for military families.) Another statute allows the Pentagon to “apply the resources of the Department of the Army’s civil works program,” and to reprogram those resources “to construct or assist in the construction, operation, maintenance, and repair of authorized civil works, military construction, and civil defense projects that are essential to the national defense.” (In other words the President could get some of his funding for The Wall by diverting money from projects such as flood control and hurricane damage relief now authorized for the U.S. Army Corps of Engineers. Think that’s a winner with voters in Texas, Georgia, Florida, and the Carolinas?) Down that same line, the President might be about to tap $13.9 billion in appropriated but not yet spent disaster relief funding. The Immigration and Nationality Act has a fund of $20 million that the President could tap in an immigration emergency. The Secretary of Defense could tap another $50 million fund to undertake a military construction project if “the project is vital to the national security.”
The stock market, which had just started to relax today with the idea that another shutdown had been averted, wasn’t amused by the latest Washington games. The Standard & Poor’s 500, which had been ahead 0.51% as of 3:38 p.m. closed the day down 0.27%.on the White House announcement.
