by Rachel Bovard
As the partial government shutdown enters its third week with little hope of an end in sight, President Trump continues to demand funding for a southern border wall. Speaker of the House Nancy Pelosi (D-Calif.) flat out refuses to pass any funding at all. In the Senate, Majority Leader Mitch McConnell (R-Ky.) has washed his hands of the matter, telling Trump to work it out with Chuck Schumer (D-N.Y.) while he moves the Senate onto other topics.
Predictably, both chambers clocked out for the weekend on Thursday afternoon. When senators and House members make the rounds on the upcoming Sunday shows wringing their hands about the shutdown, somebody might ask why they only worked less than three days this week. Apparently, the crisis at the border, and the resulting government shutdown, are an emergency to everyone except the people responsible for addressing it.
In the face of congressional intransigence, President Trump has toyed with the idea of declaring a national emergency. On Friday, the president said that option was currently off the table, and with good reason. Although funding the wall through an emergency declaration is likely legal, it would create more problems for the president than it solves, both politically and practically.
For years, conservatives decried the “pen and the phone” approach that characterized the Obama years. From subverting the Senate and binding the United States to the Paris climate accords and engaging in illegal negotiations with Hezbollah to creating law out of thin air with the Deferred Action for Childhood Arrivals (DACA) program, President Obama pushed the limits of executive power to the breaking point and beyond.
Champions of limited government rightly howled. The balance of powers was set to constrain the executive – not to anoint him. And just because Congress would rather cede its constitutional prerogatives than exercise them, the president should not feel compelled to upend a system designed to balance competing aims into a unified whole.
From Pen and Phone to Giant Eraser
Philosophical disagreements aside, there are also practical reasons why a unilateral strategy is not a prudent course.
Chief among them is that, like many perfectly legal actions Trump has taken, any executive action to fund the wall immediately would be thrown to the courts where it will be delayed, denied, and endlessly appealed.
The Left has abused a legal strategy of national injunctions to great effect, with judges as far flung as Hawaii and Boston contorting their jurisprudence to bind the entire country. Trump’s attempts to repeal DACA, impose refugee quotas, his efforts to roll back the Obamacare requirement forcing nuns to purchase birth control, and even his policies on transgender soldiers serving in the military, were or remain stymied by the courts.
But another reason to be hesitant unilateral executive action is how easily it can be undone by the next guy. Trump has spent a substantial portion of his first two years in office unraveling President Obama’s legacy – withdrawing from the Paris climate accords, the Iran nuclear deal, attempting to repeal DACA, and unwinding countless burdensome regulations.
Though he’s had to contend with the courts and faced obstruction by a bureaucracy that opposes his every move, Trump has been successful overall.
But the same is very likely to be true for Trump’s legacy if it is built solely on this foundation as soon as the next Democrat takes over the presidency. As President Obama has no doubt learned by now, the downfall of “pen and a phone” unilateralism is that the next president can walk into the Oval Office with a giant eraser.
Ultimately, the solution to the current shutdown – and the solution to funding the wall – lies with Congress.
Though they’d never speak of it openly, Republicans and Democrats would be delighted if President Trump took executive action to fund the wall. Democrats would seize on the move as further proof that Trump is a tyrant bent on undermining democratic institutions. Republicans would silently weep with relief that they could go back to pretending to care about border security while actually doing nothing.
Trump should give neither side the satisfaction.
Rather, by keeping the issue of our border security in the public eye, Trump is forcing a national conversation that both parties have spent decades avoiding.
As Trump said in his Oval Office address on Tuesday, the border is in crisis mode. In November alone, U.S. Customs and Border Patrol stopped 62,000 individuals from entering the country illegally. Immigration and Customs Enforcement has arrested nearly 300,000 illegal aliens with criminal records – including violent and sexual assaults – over the past two years. Ninety percent of the heroin plaguing communities around the country flows in through the southern border. Migrants, incentivized to come here illegally by our lax policies, report sexual assault, physical violence, and rape on the journey.
Democrats refuse to acknowledge this, and Republicans in Congress aren’t much better. House Republican leadership, now in the minority, is giving lip service to Trump’s efforts while reportedly telling their members to “do what they have to do” when it comes to opposing the president.
A Gulf in National Priorities
The Republican Senate appears to be on a different planet entirely. Majority Leader Mitch McConnell (R-Ky.) has stayed away from White House negotiations, having decided instead devote his energies to passing a Middle East security bill.
President Trump is rightly frustrated with Congress. He’s not alone. Recently released polling suggests that more people disapprove of Congress’s role in the shutdown than Trump’s. It’s almost like voters are catching onto the fact that members of both parties, after campaigning for decades on strong border policies, never quite intended to have to, you know, do anything about it.
But none of this means that Trump should stop holding Congress accountable. On the contrary, Trump is the one finally spurring a national conversation that voters want to have.
The president should be goading Republicans – senators in particular – into action. Rather than spinning their wheels on pointless legislation, Republicans should be forcing Democrats to vote on all manner of border legislation – from sanctuary cities, to Kate’s Law, to fixing family separation policy, to funding more judges at the border. Whether or not these policies pass isn’t the only point. Why not use the opportunity to paint Democrats into a very public corner, and test the limits of how many times they can publicly oppose progress on an issue about which voters have demonstrated their sincere concern?
The country is paying attention to this border crisis. So, too, is the president. The only people who seem to be oblivious are in Congress. And, like a hapless Nero, they continue to fiddle while everything around them burns.
The most arresting statement from President Trump on Tuesday remains true: “How much more American blood must we shed before Congress does its job?”
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Rachel Bovard is senior director of policy at the Conservative Partnership Institute. Beginning in 2006, she served in both the House and Senate in various roles including as legislative director for Senator Rand Paul (R-Ky.) and policy director for the Senate Steering Committee under the successive chairmanships of Senator Pat Toomey (R-Penn.) and Senator Mike Lee (R-Utah), where she advised Committee members on strategy related to floor procedure and policy matters. In the House, she worked as senior legislative assistant to Congressman Donald Manzullo (R-Il.), and Congressman Ted Poe (R-Texas). She is the former director of policy services for the Heritage Foundation. Follow her on Twitter at @RachelBovard.