US Government Shutdown Watch: 2018 Edition. More Bricks in the Wall?


#3025

Trump also has no idea how to get anything actually done that isn’t just shouting at people, and he also has almost no political capital to spend on this, even internally, so I imagine an Emergency Declaration of dubious legality is going to be slow-rolled by the people supposed to execute everywhere it’s possible to do so. It’s going to be very weird if it happens.

I kind of imagine Trump just shouting “National Emergency!” and then literally nothing else changes. He’s already pretending his wall is being built, he’ll just keep pretending.


#3026


#3027

It does mean changing the bulb.


#3028

Afraid that idea don’t fly around these parts, pardner. I tried the same thing weeks ago.


#3029

EDIT: Nevermind, we’ve all been going around this same circle for the past 100 posts at least.


#3030

#3031

Apparently in his press conference he explicitly stated that he didn’t need to do this but was impatient.


#3032

This means I can drive an ATV on regular roads, right?


#3033

I mean, imagine you’re in Trump’s DOJ, and you’re going to be stuck defending this turd in courts for the next 18-24 months:

The clonk of heads hitting desks is palpable.


#3034

I mean, this is even more idiotic if he signs the bill. He literally just signed a bill that addresses the emergency, but will declare an emergency that Congress hasn’t had time to react to the emergency, of which they just signed a spending bill to address said emergency.

I don’t care if you think the Supreme court is super conservative now, it will be difficult to win a case in front of the court when you literally admit what you are using emergency powers for isn’t an emergency.

This is just a face saving shot so he can blame someone else rather than the congressional republicans for the lack of the wall.


#3035

I’m not so sure about this anymore. It’s looking more and more like the optimal response from SCOTUS is to just punt it back to the legislature “The President has the power to declare a National Emergency based on the 1976 act, and it’s up to Congress to check that declaration, if needed.”

We have active “national emergencies” going back to Carter and Clinton.


#3036

Maybe, but if he has to use eminent domain to seize land from people, I don’t see SCOTUS just hand-waving that away.


#3037

Congress can’t give away its power to appropriate funds, even if it wants to. The line-item veto was passed by Congress but declared unconstitutional on similar reasoning.

The SCOTUS could easily revisit the National Emergencies Act. Keep in mind that the conservatives have already demonstrated hostility to the Chevron doctrine that allows the executive wide latitude in interpreting Congress.


#3038

Yet it has — to some extent, that’s what the NEA does, and the provision that gave Congress the power to scrap an emergency declaration unilaterally was ruled unconstitutional. It’s like saying that Congress can’t give away its power to declare war, but it has effectively done so for decades.

I’d like to believe SCOTUS would come down on the side of invalidating the NEA, or at least this use if it, but really it’s a reach. The President has broad discretion in matters of national security seems almost certainly what they’ll say.


#3039

Yep, exactly. The larger framing too is that none of those NDOEs were ever made explicitly to fund something that Congress refused to.

This is very much a unique case.


#3040

Well, I guess we will see, SCOTUS has always been of the interests of the legislative and executive branch to check their own power. They tend to only step in under extraordinary circumstances, and when we are talking about the federal government exerting power over the territory of multiple states on the border, I wonder if that would be enough for them to step in, as this is much more complicated than many of the cases in precedent.


#3041

Yes. Exactly this.

Again, I think we’re about to see one if the hallmarks of the Trump presidency. Things everyone assumed to be cut-and-dried issues turn out to be things that a willful president and a weak legislature can just bypass.


#3042

I mean, to go further: the Constitution is pretty explicitly clear about only the House being able to appropriate funds – with the Senate allowed to amend, recommend, advice, etc.

So the argument may shake out as, either the President is doing something unconstitutional, or the NEA that gives him cover to do this is unconstitutional.

Worth noting: per ABC, the DOJ sent a warning yesterday to the President that they didn’t think his declaration would stand in court.


#3043

To be clear, I think it should not stand in court. I even think it likely that it, or various measures stemming from it, will be blocked even at the appellate level. I just don’t have confidence that SCOTUS will see it that way.


#3044

I can’t see how it could possibly take that long, given he has now stated on the record that it’s not an emergency.