In less than two weeks, we will once again be facing a shutdown. After a partial government shutdown of over a month, Pelosi and Trump were able to reach a temporary agreement to reopen the government for three weeks. They are now facing a new deadline to either find an agreement or face another political disaster. As I see it, there are two options to ending this crisis. The first is that the two parties reach some legislative compromise. The second option, and the one that I think is more intriguing, is to punt this matter to the courts and turn them into a punching bag for America.
To quickly frame the shutdown dispute; back before Christmas, President Trump refused to sign a spending bill passed by the Senate which would have stoped the shutdown clock and kept the government running. He did this because there was no money set aside to build a physical barrier (call it what you want) along the southern border. There had been a bipartisan bill presented to him several months prior which included roughly twenty five billion dollars for border security and extended DACA protection, but still no money for the wall. That bill, as well as the last ditch efforts prior to the shutdown, were turned away. Since then, each side has held firm to their position. The Republicans claim we need a wall included in border security, while the Democrats have made a number of arguments against such a measure including claims that walls are immoral and racist. While both sides have come back to the table, there are few parties in Washington optimistic that a real agreement can be made.
The first question that comes to mind is how to end this crisis. As previously stated, I think there are two main options. The first option is that both sides (Trump and Pelosi) come to a compromise where democrats get DACA protection while Trump gets a beefed up border budget which would have to include funding for at least some small portion of new physical barriers on the border. This is essentially what the president offered in a speech from the White House last weekend. His offer was three years of extended DACA protection and 5.7 billion for border security including strategically placed physical barriers.
In my opinion, this would be the best solution for the country. It would show people that Washington can still work (sort of) by coming to some sort of compromise. It would also give each side of the partisan divide a reason to hate the other side just a little less because they’ll have gotten their opponent to give them something that they initially refused to. Whether this physical barrier would actually improve things or not is irrelevant in terms of how we can get the government back open again.
This would also give each party cover with their base, which, lets be honest, is really why we’re still stuck where we are. For Pelosi and the Democrats, they can go back to their corner claiming that they showed their newly established power in the House by blocking Trumps initial campaign promise of a massive wall along the entire border. For Trump, he can hit the trail heading towards 2020 having accomplished his main campaign promise from 2016. Unfortunately, the prospects of a compromise right now appear lower than the idea of Trump carrying the state of California in 2020. However, there is a second door we can go through here. One that would make the nauseating news cycle of the last month look like a late night informercial. Does the phrase “national emergency” sound familiar?
The second route we could go down to end this crisis involves Trump taking a rather extreme executive action and declaring the immigration situation at the southern border a “national emergency”. This would enable him to utilize Pentagon defense funds to build a physical barrier at the border, which is the president’s main crux in this debate. This would officially end the government shutdown scare. However, while this visible symptom would be cured, this executive action would create a whole new nightmare involving the courts and executive powers.
There are two separate analyzes to make with this option. I’ll begin with the electoral politics of such a decision. For Democrats, this would be truly a gift from God. With this strong use of executive force from Trump, Democrats could point and yell “Trump is truly an authoritarian who is out of control and a danger to democracy”. While this admittedly wouldn’t be very different from what some in that camp have been saying since election night 2016, at least now it would have some validity behind it. This would be 2020 gold for them. I think this is partly the motivation behind Democrats being unwilling to compromise at all in this debate. For Republicans, the political consequences are more complicated.
As it relates to 2020, Trump could make this declaration and claim that he had to because of the extremists in the left who wouldn’t make any sort of legislative compromise. This would be good kindle for the Trump base heading into 2020. However, this route would likely leave Trump heading into 2020 without a “big beautiful wall”. I say this because I don’t see the court buying the argument that the situation at the southern border is a national emergency. This is largely due to the fact that illegal crossing at the border are down over the last few years. Another factor working against an argument of their being an urgent national emergency is the fact that the president has gone a month already without making such a declaration. Nothing at the border has significantly changed over the last month. Therefore, it’s hard to make the case that there is a national emergency now that didn’t exist a month ago. For these reasons, it would make little sense in terms of the electoral impact of such a decision for Trump to take this route in trying to end the partial shutdown. However, as I’ll explain later on, if things devolve to a point where the Trump camp sees no possible political win, punting to the courts could provide considerable political cover.
The second analysis to make here looks at how such a declaration would impact the relationship between the executive and the judiciary, as well as the role the courts would play in all of this. When a ruling party or government is either faced with a difficult decision, or if they want to make an unpopular decision, they’ll often turn to their good friend the judiciary. They will find a way within their governing structure to “punt” the political issue over to the judiciary for them to handle. This enables the struggling party to throw their hands up in the face of criticism and say the matter is no longer a political one but rather a legal one. This provides the party great political cover. If the court rules on the matter in favor of the ruling party, they can celebrate the decision. They also can go to the public with legal justification for their position. They can say “Look, the court agrees with us”. However, if the court rules against them, they can blast the court as being out of touch or simply wrong. Either way, the party punched itself out of a corner and into a much better situation by turning the court into a punching bag.
In terms of our current situation, this “punting” option for Trump would be declaring a national emergency. This would take this current legislative battle and turn it into a constitutional issue for the court. Immediately, there would be a court challenge to his use of this executive authority to use Pentagon funds for the border. If the court rules that his actions were constitutional, Trump gets a huge win that has the powerful legal backing of the courts. However, if the court rules against him, as I expect it will here, then he can turn his supporters loose on the “out of touch liberal court” for their horrendous decision. As for the democrats options here, their play would be the opposite of Trumps in each of the scenarios described here. Politically, this should be a very appealing option for Democrats. For Trump, this is only a good option if he sees no path to success in the legislative route. While this route doesn’t guarantee either side a win, I think it ensures that neither will really have to take a loss. If the court rules against them, they can simply blame the court in ruling incorrectly rather than having to explain why they failed to get a good deal in the legislature. My final analysis looks at the impact such a course of action would have on the country.
Personally, I think turning the ire of the nations partisans towards the court on this could be a very good route in terms of turning down the temperature of this battle. In most democratic nations, the courts have a very high level of institutional legitimacy in the eyes of the public. They are usually the most trusted institutions in the nation. Even when people disagree with a specific ruling, they will tend to still support the court as legitimately exercising its power. Turning again to our current issue, I think the court could serve as a bomb squad of sorts in ending the shutdown issue.
It is clear that this battle is a brutal partisan mess right now. With every passing day, partisans on both sides are looking at the other side as being more and more evil and dead wrong. If this issue ends via a legislative matter, I fear that this partisan battle won’t get any better. However, I think by the president declaring a national emergency, the courts involvement could tone down the situation. Referring quickly back to the idea that courts have high institutional legitimacy even when they rule against ones interests, even if ones side loses in this current battle on a ruling regarding the declaration of a national emergency, they are more likely to tolerate the decision and move on because it is coming from a branch of the government that, statically, people have more faith in; the judiciary. The downside to this route would be that we would likely be facing a prolonged legal battle over the constitutionality of the presidents actions. As previously eluded to, this would create a horrific news cycle.
In conclusion, there is no perfect solution here. There are two options to ending this crisis. There is the legislative route or the “national emergency” route that gets the courts involved. As explained, both courses of action have upsides and downsides. The legislative route, while more expedient, will do little to tone down the partisan warfare in the country. Also, it leaves both parties open to taking a visible loss on the situation. If Trump pushes the big red button (no, not that one) and declares a national emergency, both parties will have some cover politically. Also, I think the overall temperature of the situation will be calmed down by the eventual looser being able to take their frustrations out on the judiciary rather than the legislature or the executive, which institutionally is more able to take such a beating. However, you’ll be extending this fight for likely months along with a brutal news cycle. As I stated earlier, option A is probably best for the country. However, as to which route yours truly thinks will ultimately be taken, I would predict the national emergency route simply because each side is too dug in for them to win this politically. However, if I’m being honest, I’m saying this mostly because I’m selfish and would love to be able to write about such a development. Regardless as to what eventually happens, I think we can all agree that Washington has failed the public on this one. We never should have gotten here, but that’s a topic for another day.