Trump’s national emergency declaration starts a new fight — but it also resolves the spending battle of the past few months.
The long-term effects of President Donald Trump’s decision to declare a national emergency Friday — unlocking an additional $7.5 billion to build physical barriers (a “wall”) on the US-Mexico border, in addition to the $1.375 billion appropriated by Congress in the bill Trump signed to fund the government through September 30 — won’t be fully known or understood until the historians get to them.
The emergency declaration itself could be held up in court for months or years. The construction of barriers it authorizes, if allowed to go forward, could take years more. The influence it has (or lack thereof) on norms of executive authority, and the precedent it may or may not set for future political actions, will be the subject of endless debate.
But what happened Friday morning wasn’t just the start of some new and uneasy moment. It was the culmination of a months-long funding battle that resulted in the longest (partial) government shutdown in history. Trump just signed a bill that sets funding levels (and keeps the government open) for the next six months, in addition to making some policy changes around the edges. And the emergency declaration alters political dynamics in Washington that are going to have an impact on what change various politicians can make in the future.
The “winners” and “losers” here are the real effects on people’s lives; even the rising or falling stock of a given politician matters for the policy and institutional agendas he seeks to advance. Even if Trump’s declaration of national emergency opens a whole set of new fights, there are people whose fortunes are definitely better or worse after this morning.
Winner: federal employees
Thanks to Donald Trump’s uncanny ability to make it all about him, the national emergency declaration is getting most of the attention right now. But it’s important not to lose sight of the fact that Congress just passed (and the president just signed) a bill to fund nine Cabinet departments and a host of federal agencies through the end of the fiscal year on September 30. And unlike the emergency declaration — which even the Department of Justice anticipates will almost certainly be slowed by the courts — the funding bill is actually going into effect.
In other words, the United States has just ensured that we won’t have another government shutdown for at least six and a half months.
That might not seem like much of a respite. But it’s the longest respite the federal government — and federal employees — have had since Trump came into office.
It’s not just that there have been three shutdowns over the past two years (though two of them happened over weekends and thus barely affected federal employees), or that the shutdown that ended three weeks ago was the longest in history. It’s that when the government has been open, it’s often been running on short-term continuing resolutions. Over Trump’s time in office, a normal budgeting process would have had the government face two funding deadlines, when the fiscal years ended for 2017 and 2018; instead, it’s faced 12. And many of those have gone down to the wire.
Many federal employees will be dealing with the financial aftermath of January’s shutdown (and their delayed paychecks) for some time. But the uncertainty of governance-by-continuing-resolution has its own costs to federal employees’ budgets and psyches. Six and a half months is, relatively speaking, a high degree of certainty.
Furthermore, it’s possible that Trump’s breaking the seal on the national emergency might reduce the risk of future government funding brinksmanship. The president has been threatening to shut down the government over the wall since spring 2017; he finally did it, it didn’t work, and now he’s trying something else. It’s possible that if he no longer sees threatening shutdown as the best way to get what he wants, the next two years might give federal employees more than a few weeks at a time before they have to worry about when they’re getting their next paycheck.
And the cherry on top: Defying Trump’s effort to freeze federal salaries, Congress authorized a 1.8 percent pay raise in the funding bill for civilian feds.
Loser: the “power of the purse”
It’s a staple of fifth-grade civics units: The federal government is made of three co-equal branches kept in equilibrium by a system of “checks and balances,” and one of the most important checks that the legislative branch has on the executive — arguably Congress’s most important power, period — is the “power of the purse.”
Congress appropriates money to the executive branch, and Congress determines how that money gets spent. The executive branch might be legally obligated to submit a budget, but the legislative branch has no legal obligation to pay attention to it.
In practice, the executive branch has some options when it wants to move money around. And Congress has passed laws that give the executive branch even more powers in the case of a national emergency — though an emergency declaration unlocks a long list of specific powers, not a blank check to do whatever the president wants.
But even if Trump’s national emergency declaration is a valid exercise of the National Emergencies Act of 1976 — and it will be up to the courts to figure that out — the fact remains: The president of the United States demanded that Congress fund a policy priority of his, Congress refused to fund it at the levels demanded, and the president responded by directing billions more dollars to it anyway.
What really distinguishes this emergency declaration from others isn’t necessarily the factual question of what counts as a national emergency. It’s the fact that Trump telegraphed what he was going to do for weeks — while Congress was negotiating with him and with itself over government funding. Trump was absent from the negotiations that produced this funding bill. He’d already made it clear that if he didn’t get what he wanted from Congress, he’d simply get it another way.
Of course, Trump’s obviousness is going to make it that much harder for the Department of Justice to defend the emergency declaration from the inevitable lawsuits. But that’s the story of the federal government over the past decade or so: The executive branch makes policy, and the judicial branch decides whether to uphold it. The legislative branch is left giving vaguely disapproving quotes to the press.
Loser: Mitch McConnell
Mitch McConnell finally tried to stand up to Donald Trump, and Trump made him back down.
The Senate majority leader’s approach to the mercurial president has been to let Trump decide what he wants and then put varying levels of legislative elbow grease into making that happen. It’s a smart approach, if the goal is to protect your incumbent Republican senators: It avoids the worst-case scenario in which senators take a tough vote on a bill because they think the president will sign it, only to have Trump reject the bill and whip up the base against its supporters. Of course, when the president doesn’t say what he wants — or isn’t willing to modify his demands into something that can actually pass — you risk government shutdowns.
McConnell cares more about preventing shutdown than Trump does. So after the government reopened in January, he let his appropriators (led by Alabama Sen. Richard Shelby) actually make a deal first and get the president’s approval later.
At the same time, though, McConnell let it be known that he didn’t want Trump to declare a national emergency. (The Washington Post headline was “McConnell privately cautions Trump about emergency declaration on border wall,” but someone had to tell the Post about the “private” cautioning.) It was an effort to preserve some legislative power vis-à-vis the president — not least in case the Senate was still in Republican hands the next time the presidency was in Democratic ones.
But McConnell couldn’t prevent both a shutdown and an emergency. Before Republican senators were willing to vote for the deal Thursday, they needed assurance the president would actually sign it. And the president’s assurance, apparently, only came when he decided to sign the emergency declaration at the same time.
The result is that McConnell, who let it be known he didn’t want a national emergency, had to stand on the Senate floor and say he supported the president’s decision to sign one to keep the government open. Worse, if the House successfully passes a resolution attempting to reverse the declaration, it will go straight to the Senate floor — McConnell has no power to block it. McConnell will have to either risk embarrassing Republican defections that could kill an emergency declaration he himself is now on the record supporting or whip Republican votes to save an emergency declaration he didn’t want.
Trump’s method of “negotiating” — find various ways to get what you want and wear the other guy down instead of compromising — hasn’t usually worked in Washington. It just worked on, of all people, Mitch McConnell.
Winner: 2020 Democrats
As Democratic politicians have started declaring their candidacies for the 2020 presidential primary and sketching out their policy proposals, they’re inevitably hit with two questions: “How are you going to pay for it?” and “How is that going to get 60 votes in the Senate and survive a filibuster?”
Trump just gave them an easy way to answer both questions at once: declare a national emergency.
Democrats are already threatening to use emergency powers in future to pass their own preferred policies to address the things they think are crises. They’re not digging into the specific emergency authorities they would use, and in some cases, there probably aren’t any available — unlocking emergency funds doesn’t necessarily give you a way to expand gun regulation, for example. But presidential candidates don’t tend to get punished by the voters for overstating the scope of their potential powers.
Almost as importantly, Trump’s emergency declaration distracts political attention from what could have been the first big intra-Democratic fight of the primary. The funding bill Congress passed Thursday was attacked by progressives in the immigrant rights movement for its expansion of immigration detention and what they perceived as insufficient checks on Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP).
Several presidential candidates — including Sens. Kamala Harris (D-CA), Elizabeth Warren (D-MA), and Kirsten Gillibrand (D-NY) — voted against it. Others — including Sen. Amy Klobuchar (D-MN) and the still-undeclared-but-likely candidate Sen. Bernie Sanders (I-VT) — voted for.
Under normal circumstances, those on each side of the bill would now be dogged by questions about their votes — and invited to attack candidates who disagreed. But now, there’s something else for reporters to ask about: an emergency declaration that every Democrat will agree is unnecessary and destructive.
Winner: immigration detention
The Trump administration has played hardball on immigration detention with Congress, and it appears to be paying off.
The bill gives ICE money to keep an average of 45,274 immigrants in detention between now and September 30. That’s more, by far, than Congress has ever funded ICE for in advance before. It is, however, less than the number of people actually in detention right now — more than 49,000 as of the beginning of this week.
In theory, then, ICE is going to have to release some immigrants from detention, or choose not to detain new ones after they’re arrested. Democrats hope that by the end of September, ICE will have the detained population down to 40,520 or so — the level that Congress authorized in its 2018 funding package but that ICE vastly exceeded.
But there’s no way to force ICE to stick to its budget this time either. The Trump administration retains its authority to move some money from other things into ICE detention.
The bill includes money for “alternatives to detention,” and restarts a case management program for asylum-seeking families that immigrant rights advocates have long championed as a better approach. But the Trump administration is deeply skeptical of anything that could allow asylum seekers to “abscond” and miss their court dates. Furthermore, the administration is adamant that it needs to detain every immigrant with a criminal conviction or charge in order to protect the safety of the American people, and those make up a majority of the immigrants ICE arrests (as opposed to those apprehended coming into the US).
It’s very possible the administration will continue its tactic of detaining people first and finding the money (or asking Congress for help) later.
Loser: “Build the wall”
Seriously, hear me out.
Yes, Trump has as much as $9 billion to build barriers on the US-Mexico border as a result of this morning’s actions (though how much of that money is ultimately available to him will depend on the outcome of the inevitable national emergency lawsuit). But the months-long fight over funding has demonstrated conclusively that no one can actually agree on what counts as a wall — including the president and the conservative media elites who have occasionally threatened to stir up the base against him.
Without a consensus about what the “wall” is, the fight over it can never get resolved. Trump can declare victory — or Democrats, thwarting him, can declare his defeat on his behalf — but it won’t necessarily stick. When both sides can declare victory, the fight just goes on for another round.
Democrats in Congress crowed that the $1.375 billion they appropriated in this funding bill wasn’t money for a “wall,” because they only authorized that money to be used for “fencing” that conformed to designs already in place on the US-Mexico border. But that’s exactly what the administration was asking for to begin with.
Even before the government shutdown, the Department of Homeland Security said it would use the $5.7 billion Trump was demanding to build steel bollard fencing, the same thing Congress has funded. The Trump administration says it’s now using the emergency declaration money to complete those same projects — and it’s explicitly said it’s using bollards. So the “wall” Trump is building with the emergency declaration is going to be identical to the “not a wall” Congress authorized.
Without agreement on whether Trump is currently building the wall or not, how can Trump declare he’s completed it? How can Democrats declare he’s funded it?
President Trump recognizes the pickle he’s in. He turned “build the wall” into a political slogan among people who didn’t understand the border security status quo or what would actually be workable. Now he’s trying to get his base to pivot to “finish the wall” as a way of squaring the circle — and they’re not buying it. There will be future fights over “wall” funding, and they will probably get hopelessly buried in semantics. Because the idea of the “wall” as an entity that people could agree on, and decide to fund or not, is dead.
Winner: congressional oversight
The power of the legislative branch may have taken a big hit Friday, but there is a silver lining for Congress — or at least House Democrats. The funding bill shows that Democrats are serious about providing oversight of the administration — and it demonstrates how robust oversight can change policy.
The bill includes robust reporting requirements for ICE and CBP — on the number of immigrants in detention, any ongoing separation of families at the border (and updates on continued questions about how many families were separated in 2017 and early 2018), and how exactly CBP plans to spend the money it’s authorized for construction and infrastructure. It also instructs the inspector general to continue spot checks of immigration detention centers, while barring ICE and CBP from preventing any member of Congress from entering a facility to inspect it.
Ideally, oversight isn’t just a way to name and shame the executive branch for doing things the opposition finds unconscionable. In theory, it can occasionally lead to actual changes in policy, law, or funding. There’s some of that in the bill too.
In the past, Democrats in Congress have shown particular interest in the treatment of pregnant women in immigration detention; there’s a very strict ban in the bill on the shackling of any pregnant woman in the custody of immigration agents.
Last year, questions from Congress (and follow-up reporting) revealed that ICE arrested some unauthorized immigrants who had agreed to sponsor children who had come to the US unaccompanied. This bill bars ICE from spending any appropriated money on enforcement against sponsors of unaccompanied children.
Oversight doesn’t have to be antagonistic — it can be a way for members of Congress to understand why the administration wants what it wants.
The bill doesn’t give the administration the $800 million in “humanitarian” funding it asked for to improve treatment of children and families — something some congressional Democrats have professed concern about after the deaths of two children in CBP custody in December — but it does give $415 million. About half of that money would be used to build a new processing center for families in Texas, as an alternative to holding families in places that aren’t designed to hold immigrants at all; the rest would be used to hire medical contractors, provide better food and more diapers, and increase CBP’s capacity to move immigrants to a suitable facility even if they’re apprehended in a remote location.
Some progressives are deeply upset with the bill for its expansion of immigrant detention; some progressive first-term members (led by Rep. Alexandria Ocasio-Cortez) had insisted that ICE and CBP have their budgets reduced, not expanded. But there are more restrictions on how that money can be spent, and what the administration has to do to keep Congress from reducing it next time out of pique or distrust, than there would be if Republicans were in charge.
Loser: federal contractors
Federal employees are getting back pay for their work during the partial government shutdown. But as many as 580,000 federal contractors — from security guards and janitors to researchers and IT workers — aren’t getting their lost wages back.
Democrats, led by Minnesota Sen. Tina Smith, had wanted to add a bill to the final spending package that would have guaranteed contractors wages they had missed out on because of the impasse. They were blocked, however, by Senate Republicans and the White House.
One Trump administration official told HuffPost that implementing a process to dole out back pay could wind up being costly for federal agencies. But a representative from the Professional Services Council, a group that advocates on behalf of contractors, told the Hill he didn’t think that was actually the case.
Because of the disagreement among negotiators and the tight timeline on completing this spending deal, federal contractors have once again been left out in the cold. Many contractors said they had struggled to cover day-to-day living costs during the shutdown, including medication, baby formula, and child care.
Smith has said she’ll keep pushing for contractors to receive the compensation they need. But for now — if Trump signs this spending agreement — all they have is the reassurance that the federal government won’t shut down again for at least six more months.
Author: Dara Lind