After a political crisis, Trump’s national emergency plan creates a constitutional one

The self-described master of the art of the deal is a very sore loser.

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It’s no wonder that President Donald Trump, the self-described master of the art of the deal, is feeling sore. First, he shut down the US government for an unprecedented 35 days to bully congress into agreeing to his ludicrous demand for a $5.7bn border wall. Now, he has instead been forced to agree on a spending bill that allocates less money to his private obsession than he would have secured had he not held the whole country hostage, and used the livelihoods of 800,000 federal government workers, who did not receive pay during the shutdown, as a political pawn.

After several days seemingly spent sulking, Trump on Thursday agreed to sign a spending package that would allocate $1.4bn to building an extra 55 miles of steel barrier along the US-Mexico border. (As the Associated Press dryly observed, in almost 2,000 pages of legislation and accompanying notes, the word “wall” isn’t mentioned once.) The bill also caps the number of detention centre beds that Immigration and Customs Enforcement (ICE) can maintain – though depressingly, it allows for an increase in the number of immigration detentions compared to last year. Had he agreed to sign a spending bill in December, and averted the government shutdown, he would have received $1.6bn for the wall.

In a rare act of political bipartisanship, the spending bill passed the senate, where Republicans maintain a majority, by 83-16. Having been forced to accept defeat, mainly because his Republican Party was no longer prepared to participate in another extended shutdown, Trump has responded in the way any thin-skinned, volatile, aspiring autocrat would. The White House said on Thursday evening that the president intended to declare a national emergency to force through funding for his border wall. After precipitating a 35-day political crisis with the government shutdown, the president now seems intent on creating a constitutional one.

In an about-face, senate majority leader Mitch McConnell said that he supported the president’s national emergency declaration. But a number of other prominent Republicans have expressed their concern at Trump’s attempts to circumvent congress’s historic role in determining how federal finances are spent. “We have a crisis at our southern border, but no crisis justifies violating the constitution,” Republican senator Marco Rubio said in a statement.

The two leading Democrats in congress, Nancy Pelosi and Chuck Schumer, issued an even more strongly worded statement condemning the president:

Declaring a national emergency would be a lawless act, a gross abuse of the power of the presidency and a desperate attempt to distract from the fact that President Trump broke his core promise to have Mexico pay for his wall. It’s yet another demonstration of President Trump’s naked contempt for the rule of law. This is not an emergency, and the president’s fearmongering does not make it one.

Democrats will now almost certainly mount a legal challenge against Trump, as may several other groups, arguing that he is abusing his power by declaring a national emergency over something that is not one – and certainly not a crisis that can be fixed by building a wall. According to ABC News, the Justice Department has warned the White House that the national emergency declaration will almost certainly be immediately blocked by the courts, at least on a temporary basis.

Democrats may also seek to pass a joint resolution through congress opposing the declaration and putting Republican senators in the awkward position of deciding whether to break with the president or vote for something they don’t agree with and which is deeply unpopular politically. (One poll showed that 69 per cent of Americans oppose the declaration of a national emergency to fund the wall.)

The declaration will allow the president to redirect military funds to the border wall. According to Bloomberg, the president intends to use the emergency declaration to divert $8bn to the project, including the $1.4bn allocated to the wall under the spending bill. Citing anonymous officials, Bloomberg wrote:

The president will invoke an emergency declaration to redirect $3.5bn Congress approved for the Defense Department’s military construction budget, said another person familiar with the deliberations. Trump also will use his ordinary executive authority to reprogram $2.5bn from the Defense Department’s drug interdiction efforts and $600m from the Treasury department’s drug forfeiture program.

In a rambling speech in the White House rose garden on Friday morning, Trump repeated his usual misleading assertions about drug-smuggling and immigrant crime in order to portray the US-Mexico border situation as a national security crisis. Tellingly, he said that he “didn't need” to declare a national emergency to fund his wall, but that he just wanted to get it done “faster” – some emergency. He also conceded that he was likely to face legal challenges and expected the issue to end up in the Supreme Court, where he speculated he'd get a “fair shake”.

It seems unlikely that he’ll succeed in using his national emergency powers to force through wall funding against congressional opposition. But that he’s prepared to give it a shot points to Trump’s alarming disregard for democratic norms, and his dangerous conviction that, as president, he should be able to impose his own will, at whatever cost.

Sophie McBain is North America correspondent for the New Statesman. She was previously an assistant editor at the New Statesman.