Donald Trump is stuck in a bind. He has gone all-in on his demand for Mexico border wall cash, insisting government will not reopen until he gets the money.
He has tried warnings (“thousands” of Americans will die without it), flattery (handing out sweets during talks) and theatrics (addresses from the Oval Office and the Rose Garden).
And yet the Democrats will not budge. Barely a chink of light has appeared between Chuck Schumer and Nancy Pelosi, the Democrat leaders in the US Senate and House of Representatives, in their blanket opposition to the demand. The border wall is “immoral”, they say, and will not be funded on their watch.
In fact, with the partial government shutdown hitting the three-week mark on Friday, it is the Republicans who are splintering as moderate senators voice support for reopening government even without a border wall deal.
Mr Trump has been doubling down and doubling down on his strategy in the new year, and yet the fundamentals have not changed.
The Democrats control the House. The Democrats won’t pass a spending bill with the $5.7bn (€5bn) of border wall funding he wants. End of.
Which presents Mr Trump with a challenge. How can he achieve his demand now so publicly made that he cannot backtrack – building the border wall – while also reopening government? One answer would be to make the Democrats an offer so tempting they would have to switch position – namely granting amnesty to the hundreds of thousands of migrants brought to America illegally when children, the so-called “Dreamers”. But Mr Trump has ruled that out.
Which leads us to answer number two: Declare a national emergency.
This is the option Mr Trump is increasingly convinced he has to take. Last week he did not rule out the move. On Thursday, he actively talked it up. White House lawyers are already reportedly working up the legal justification.
Why? Because declaring a national emergency could allow Mr Trump to thread the needle – building the wall, opening the government and being seen not to have backed down.
For decades presidents have been able to access so-called “national emergency” powers. These essentially are extra things a president can do, spelled out in laws already on the statute book, if he declares a national emergency.
In total there are an estimated 123 statutory powers that become available to Mr Trump if he unilaterally makes the declaration. Each has a tight legal definition outlining exactly how the power can be used.
Two of the powers could, perhaps, be used to build the wall. Both are to do with allowing military construction at a time of national emergency.
Some experts suggest the scope is too narrow for border wall construction. Is the wall really a matter of national security or military in definition? But an argument can be made.
Which gets Mr Trump over his first hurdle. He could declare a national emergency and announce he is starting to build the wall – therefore delivering on his promise to his base.
That unlocks a way over the second hurdle. Mr Trump could announce he will end the shutdown, signing into law spending bills that do not contain his border wall funding. He can do so without having to lose face. I did not back down, he would argue. I am just building the wall through a different route.
There are, of course, downsides to the move. A legal challenge would almost inevitably follow, leading to a potentially lengthy court battle.
There is no guarantee the judges will be on Mr Trump’s side. And if the court ultimately knocks down his use of national emergency powers, more time will have been eaten up before the end of his first term in January 2021.
Calling a national emergency over a spending row with Congress is also unprecedented. National emergencies have been declared 58 times since the laws were reformed in 1976, according to the Brennan Centre for Justice.
Most were to do with implementing sanctions. Not one of them was about spending which Congress would not grant.
Critics would scream executive overreach and the US system of checks and balances would creak once again.
But even here, there could be a political upside. If the courts quash the president’s border wall national emergency pitch, he would have another group – the “biased” judges he has already railed against in the past – to blame.
Mr Trump could go into the 2020 election explaining that he had done everything he could to deliver his signature 2016 campaign pledge, a border wall, but the Democrats and the courts refused. One more term, he would argue, and we will get it done.
On Thursday, Mr Trump gave the strongest hint yet he could take the move.
If a deal cannot be reached he would “100pc” call a national emergency, the president said.
The reason why is clear. Mr Trump could build the wall, reopen government while not being seen to have backed down. He would have escaped his bind – for now at least. (© Daily Telegraph, London)
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