Threats over shutdown, emergency declaration hang over coming talks

Amid the optimism, acrimony and hard feelings frame debate

Speaker Nancy Pelosi, D-Calif., and Senate Minority Leader Charles E. Schumer, D-N.Y., seen after a Friday news conference in the Capitol about a continuing resolution to reopen the government. (Tom Williams/CQ Roll Call)
Speaker Nancy Pelosi, D-Calif., and Senate Minority Leader Charles E. Schumer, D-N.Y., seen after a Friday news conference in the Capitol about a continuing resolution to reopen the government. (Tom Williams/CQ Roll Call)
Jason Dick
Posted January 28, 2019 at 5:04am

The shutdown wasn’t even over before the next shutdown threat was leveled at Congress by President Donald Trump. 

Yes, congressional leaders and the president struck a deal Friday to end the partial government shutdown, for three weeks at least. But hanging over the negotiations on a broader deal will be Trump’s threats to declare a national emergency or force another impasse to expedite building a southern border barrier, an extra bit of animus coloring the coming talks. 

“If we don’t get a fair deal from Congress, the government will either shut down on Feb. 15, again, or I will use the powers afforded to me under the laws and the Constitution of the United States to address this emergency,” the president said in his Rose Garden remarks Friday. 

Afterward, talking to reporters in the White House, he was even more direct.

“We’ll work with the Democrats and negotiate, and if we can’t do that, then … obviously we’ll do the emergency because that’s what it is. It’s a national emergency,” Trump said.

So, in other words, it won’t be long before lawmakers are facing the prospect of having to cancel the Presidents Day recess because of another partial government shutdown.

Watch: Trump warns of another shutdown if Congress doesn’t reach a new deal by Feb. 15

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Keeping the faith

At the Capitol on Friday, lawmakers on both sides of the aisle were all singing the same hymn — that they had plenty of time and goodwill to get a deal, despite the somewhat muted mood pervading Washington. 

“I can’t assure the public on anything the president will do, but I do have to say I’m optimistic,” Speaker Nancy Pelosi said, adding that she had been clear Democrats would continue to oppose a wall. 

Her Senate cohort, Minority Leader Charles E. Schumer, seconded those positions.

“Democrats are against the wall, but we agree on many things,” the New York Democrat said, citing proposals such as enhancing technology at the border, security ports of entry and stopping drug traffic. “That bodes well” for finding agreement, he said.

On the Republican side, House Minority Leader Kevin McCarthy said three weeks gave lawmakers enough time to “find common ground.” While Senate Majority Leader Mitch McConnell was more hopeful than optimistic.

“Hopefully, we’ll have good faith negotiations over the next three weeks to try to resolve our differences on the best way to secure the border,” the Kentucky Republican told reporters.

Such wariness among lawmakers was perhaps not a surprise given the record-setting length of the shutdown. 

Equally not surprising were a number of lawmakers on both sides of the Capitol signaling their intent to push legislation that would prevent future shutdowns — providing automatic continuing resolutions in the event of Congress and the president not agreeing on funding levels for government spending. 

“I hope the experience of the last 35 days has taught us that we should never repeat this exercise of shutting down government again,” House Majority Leader Steny H. Hoyer said on the floor shortly before that chamber passed the three-week deal and sent it to the president for his signature. 

As the president is wont to say, though, we shall see, in 21 days to be precise. 

Emergency powers

Leaving aside the prospect of another partial government shutdown, a national emergency declaration would provoke more animosity, and possible gridlock.

Democrats would promptly file suit against the administration if Trump were to declare a national emergency to bankroll a barrier, the new chairman of the House Armed Services Committee warned Friday.

Trump’s aides have reportedly drafted a declaration that would enable the president to divert billions in military construction and flood-control funds.

“There would immediately be a lawsuit,” Washington Democrat Adam Smith said in a C-SPAN “Newsmakers” interview. “Taking billions out of the Pentagon’s military construction budget would be a big problem, and there’s bipartisan opposition to it.”

Moving money slated for Army Corps of Engineers’ flood-control programs would likewise be “problematic,” Smith said.

Smith predicted Congress might reconsider the 1976 National Emergencies Act, which gives the president such sweeping authority to spend money without lawmakers’ assent.

He also said the Armed Services panel’s first hearing of the new session on Tuesday will focus on the administration’s justification for deploying nearly 5,000 U.S. troops, about half of them active-duty personnel, to the southern border.

The troops are there ostensibly to secure the border against immigrants that the president has labeled a threat. The operation began in October, and the Pentagon has authorized its continuation through at least Sept. 30.

The National Emergencies Act gives the president virtually open-ended authority to declare an emergency, which in turn empowers him to use any of several other laws to shift money around the federal budget, including from military construction and Army Corps of Engineers programs.

Presidents have used defense money to cover the costs of addressing declared emergencies on many occasions in recent decades, but the sums of money involved were smaller than Trump’s proposal to spend at least $5.7 billion in fiscal 2019 as a down payment on a border wall. Past uses of the legal authority have also generally been for projects outside the the United States.

Although the president has authority to use the emergency law, his administration might face questions in court about the validity of the emergency and how and why the military would be involved.

Smith said on the Newsmakers program that he does not think there is an emergency even under the terms of the 1976 law.

He disclosed that one witness at the hearing will be Air Force Gen. Terrence O’Shaughnessy, the commander of U.S. Northern Command, which has responsibility for the Defense Department’s homeland security efforts, including indirect military support for law enforcement.

Lindsey McPherson, Niels Lesniewski, and Jennifer Shutt contributed to this report.