Earlier this afternoon, Donald Trump appeared to back away from the emergency declaration strategy, saying that he didn’t want to do it “right now” or “so fast.” If you care about our constitutional order and if you care about getting more fencing on the southern border, you should be pleased at the delay. The more I think about the emergency declaration strategy, the more it looks like a destructive, disguised surrender.
It’s destructive for all the reasons I outlined yesterday. He would defy the plain language and clear intent of the relevant law in an unlawful executive power grab. An emergency declaration would be fundamentally authoritarian.
In fact, it would represent such a blatant abuse of power that it would likely be futile. According to the Washington Post, his own legal advisers have told Trump that he would be on “shaky legal footing.” Democratic and Republican-appointed judges would be deeply skeptical of his legal argument, and the odds are that an emergency declaration would be quickly blocked in court, and the litigation would likely stretch through the rest of his first term.
Trump now knows this.
That’s why I agree with Erick Erickson. If Trump reopens the government and declares an emergency, he’s actually caving creatively. Erick makes a similar point as Rich Lowry, who tweeted yesterday that “the national emergency isn’t a way to win the shutdown fight; it’s just a way to lose and shift the blame to the courts.” Trump knows that he faces long odds in court. He also knows he can go to his base and say, “I fought harder than anyone for the wall. I declared an emergency. No other Republican would have the guts to take things this far.”
But if you’re the Washington Generals, does it take guts to take the court against the Harlem Globetrotters, or are you taking the very beating you’re expected to take? The government will open, lawyers will block the law in court, and Trump will get nothing, except perhaps for the misguided praise of his 41 percent.
Consequently, if you want the wall — if you want anything truly meaningful in an immigration compromise, for that matter — you should root against the emergency strategy, even if you don’t care about the constitutional question. The declaration means almost certain defeat. If Lindsay Graham or any other Republican calls for an emergency declaration, they may think they’re telling the president to fight. In fact, they’re almost certainly telling him to lose.