The bipartisan conference committee seeking a solution to the budget crisis that Trump engineered in December has until Feb. 15 to come up with an answer that can earn an approving scrawl from the executive Sharpie. But in case that committee thinks the answer might lie in a solution that provides for some broad legislation on immigration, Donald Trump is making it very clear: He doesn’t want an answer. He wants a wall.
As the Washington Post reports, Trump has passed along the message that he wants a “simple” deal, one that gives him his wall and doesn’t include any other issues. For Trump, this is likely a matter of casting around for a deal that will save him from further criticism by Rush and Ann. But the result of seeking such a simple plan is that it is extremely likely to generate an equally simple response: “No.” That response then takes the country one step closer to what Trump is clearly itchin’ to do in the first place: pull the trigger on the National Emergency Act.
The NEA was intended for situations in which events are unfolding at a pace that national security demands action without debate by Congress. It was never intended to be used as a declaration of sovereignty by a rogue executive simply unhappy with the answers he was getting back from Capitol Hill. Unfortunately, the framers of the act did not think to safeguard it against such a hijacking, and since Trump became aware there was such an option, threatening to use it has become part of his repertoire.
Declaring the non-crisis on the southern border a national emergency would allow Trump to abscond with funds to build his wall without the sanction of legislation. His options on where to find that cash would be limited to stealing from unallocated military funds, but since that broad brush includes disaster recovery funds intended to deal with hurricane damage in Puerto Rico, it seems a safe bet that is where Trump would buy his bricks. Stiffing Americans who don’t get to vote is a Republican no-brainer.
Using the NEA in this way would result in immediate court challenges. Nancy Pelosi could also raise an instant challenge from the House, declaring the emergency at an end. Since the legislative solution would also require passage in the Senate, it’s likely that Trump would avoid the messy point at which he vetoes a congressional bill declaring his personal mismanagement, but the court challenge seems very likely to succeed.
What’s going on inside the 17-person conference committee seems to be to largely opaque following the first few days of their meetings. Still, Democrats have made it absolutely clear—both inside and outside—that they are unwilling to go for exactly the kind of “simple” bill that Trump is demanding, one that gives him his wall without getting into the messy business of actually make a deal. Committee member and Democratic Sen. Jon Tester has indicated that he would include some funding for a wall, but only as part of “broad-based measures” aimed at both border security and immigration.
It seems quite likely that the committee will emerge with a bill devoting funds to border security, but limiting the ability of those funds to be spent on a barrier, except perhaps in a few areas where construction would replace or augment existing fences. It’s also likely that Democrats will want something in exchange for this agreement, including some form of protections for immigrants already in the country, and perhaps limits on Trump’s (and future presidents’) ability to use 800,000 government workers as hostages in a future shutdown.
If these not-simple answers causes Trump to withhold his signature, or encourage Senate Majority Leader Mitch McConnell to simply refer the committee’s solution directly to the nearest round file, Republicans would probably be very happy to see Trump make his national emergency declaration. Because even though it will almost certainly be declared an illegal overstep and rolled back at quickly as it can be brought in front of a judge, at least Trump can look at Rush and Ann and tell them he tried.
Then Congress can vote on something less simple, and McConnell can get use the incident to fundraise in his ongoing effort to replace every judge with someone who would never say no to Donald Trump.