WASHINGTON — At first, he vowed to “take the mantle” for closing part of the federal government. Then he blamed Democrats, saying they “now own the shutdown.” By Friday, President Trump was back to owning it again. “I’m very proud of doing what I’m doing,” he declared.
Two weeks into the showdown over a border wall, Mr. Trump is now crafting his own narrative of the confrontation that has come to consume his presidency. Rather than a failure of negotiation, the shutdown has become a test of political virility, one in which he insists he is receiving surreptitious support from unlikely quarters.
Not only are
- national security hawks cheering him on to defend a porous southern border, but so too are
- former presidents who he says have secretly confessed to him that they should have done what he is doing. Not only do
- federal employees accept being furloughed or forced to work without wages,
- they have assured him that they would give up paychecks so that he can stand strong.
Never mind how implausible such assertions might seem. The details do not matter to Mr. Trump as much as dominating the debate. After an oddly quiescent holiday season in which he complained via Twitter about being left at home alone — “poor me” — he has taken the public stage this week clearly intent on framing the conflict on his own terms.
People close to the president described him as emboldened since members of Congress returned to Washington after the break, giving him not only a clear target to swing at but helping him focus on a fight that he is convinced is a political winner. One aide said Mr. Trump believes he has gained the upper hand in the public battle.
Although surveys at first showed more Americans blaming him for the shutdown than Democrats, later polling showed the fault more evenly split. And the voters he cares most about, his core conservative supporters, are more enthusiastic than the public at large. He has told people that “my people” love the fight, and that he believes he is winning.
In the past three days, Mr. Trump has appeared in public three times to get his version of the story out while Democrats celebrated their takeover of the House. At a lengthy cabinet meeting on Wednesday, an appearance with border patrol union leaders on Thursday and a news conference with Republican congressional leaders in the Rose Garden on Friday, he engaged in quintessentially Trumpian stream of conscious discussions that ranged widely and unpredictably.
At one point, he argued that the Soviet Union was right to invade Afghanistan in 1979 to stop terrorists, a revisionist version that provoked a strong reaction in Kabul and earned a sharp rebuke from the often supportive editorial page of The Wall Street Journal, which said, “We cannot recall a more absurd misstatement of history by an American President.”
Mr. Trump’s version of events differed even from the other people in the room at Friday’s meeting at the White House. When Democratic congressional leaders emerged after two hours, they described a “contentious” session with no meaningful progress as the president threatened to keep the government closed for “months or even years.” When Mr. Trump emerged shortly afterward, he described a “very, very productive meeting” and predicted the standoff could be “fixed very quickly.”
Two people briefed on the meeting said that White House officials viewed the conversation as the first civil discussion that had taken place between the two sides, and it left some of Mr. Trump’s aides hopeful. Indeed, Mr. Trump made a point of publicly saying nothing but relatively positive things about the Democrats on Friday.
Optimistic that a deal really is within reach, the president said he would have Vice President Mike Pence; Kirstjen Nielsen, the homeland security secretary; and Jared Kushner, his son-in-law and senior adviser, meet with Democrats over the weekend.
But there were questions about his own side of the aisle. Senator Mitch McConnell, Republican of Kentucky and the majority leader, unlike other congressional Republican leaders, was not present for the Rose Garden news conference. “He’s running the Senate,” Mr. Trump explained, even though the Senate had adjourned hours earlier and Mr. McConnell’s spokesman said the senator did not know about the news conference.
The president nonetheless was feeling energized by support he said he had received for the fight — including the very federal employees who are not being paid as a result of the partial shutdown.
By all public accounts, Mr. Trump had not spoken with his living predecessors since his inauguration until former President George Bush died last month. Mr. Trump called Mr. Bush’s son, former President George W. Bush, to offer condolences, but the subject of the wall did not come up, according to Mr. Bush’s office. A few days later, at the elder Mr. Bush’s funeral, Mr. Trump encountered his predecessors for the first time since taking office, but he sat quietly without talking with them during the service.
The younger Mr. Bush built miles of wall and fencing along the Mexico line while he was president, but said it could not cover the entire border and insisted that enforcement should be coupled with an overhaul of immigration law to permit many people in the country illegally to stay. Former President Barack Obama has repeatedly criticized Mr. Trump’s proposed wall, and former President Jimmy Carter has said technological improvements would be more effective at protecting the border.
The White House did not say afterward which presidents Mr. Trump was referring to, but a senior administration official said he was probably referring to public comments his predecessors have made about the need for border security, not necessarily for a wall specifically.
As he careened this week from subject to subject and assertion to assertion, an energized Mr. Trump seemed to be enjoying himself. He went on for more than an hour and a half on Wednesday and another hour on Friday.
“Should we keep this going or not, folks?” he asked reporters at one point before noticing that it was a cold January day in the Rose Garden.
“Should we keep this going a little bit longer?” he asked again. “Let me know when you get tired.”
One thing Mr. Trump was not was tired.
The Border Wall: What Has Trump Built So Far?
No, Trump Cannot Declare an ‘Emergency’ to Build His Wall
If he did, and used soldiers to build it, they would all be committing a federal crime.
President Trump on Friday said that he was considering the declaration of a “national emergency” along the border with Mexico, which he apparently believes would allow him to divert funds from the military budget to pay for a wall, and to use military personnel to build it.
While it is hard to know exactly what the president has in mind, or whether he has any conception about what it would entail, one thing is clear: Not only would such an action be illegal, but if members of the armed forces obeyed his command, they would be committing a federal crime.
Begin with the basics. From the founding onward, the American constitutional tradition has profoundly opposed the president’s use of the military to enforce domestic law. A key provision, rooted in an 1878 statute and added to the law in 1956, declares that whoever “willfully uses any part of the Army or the Air Force” to execute a law domestically “shall be fined under this title or imprisoned not more than two years” — except when “expressly authorized by the Constitution or Act of Congress.”
Another provision, grounded in a statute from 1807 and added to the law in 1981, requires the secretary of defense to “ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel)” must “not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.”
In response to the Hurricane Katrina disaster in New Orleans, Congress created an express exception to the rules, and authorized the military to play a backup role in “major public emergencies.” But in 2008 Congress and President Bush repealed this sweeping exception. Is President Trump aware of this express repudiation of the power which he is threatening to invoke?
The statute books do contain a series of carefully crafted exceptions to the general rule. Most relevantly, Congress has granted the Coast Guard broad powers to enforce the law within the domestic waters of the United States. But there is no similar provision granting the other military services a comparable power to “search, seize and arrest” along the Mexican border. Given Congress’s decision of 2008, this silence speaks louder than words. Similarly, the current military appropriations bill fails to exempt military professionals from criminal punishment for violating the law in their use of available funds.
It is, I suppose, possible to imagine a situation in which the president might take advantage of the most recent exception, enacted in 2011, which authorized the military detention of suspected terrorists associated with Al Qaeda or the Taliban. But despite President Trump’s unsupported claims about “terrorists” trying to cross the border, it is an unconscionable stretch to use this proviso to support using the military for operations against the desperate refugees from Central America seeking asylum in our country.
It is even less plausible for the president to suspend these restrictions under the National Emergencies Act of 1976. From the Great Depression through the Cold War, presidents systematically abused emergency powers granted them by Congress in some 470 statutes, culminating in the Watergate fiasco. In response, the first section of the 1976 act terminated all existing emergencies and created a framework of checks and balances on the president’s arbitrary will.
If President Trump declared an emergency, Section Five of the act gives the House of Representatives the right to repudiate it immediately, then pass their resolution to the Senate — which is explicitly required to conduct a floor vote within 15 days. Since President Trump’s “emergency” declaration would be a direct response to his failure to convince Congress that national security requires his wall, it is hard to believe that a majority of the Senate, if forced to vote, would accept his show of contempt for their authority.
The Supreme Court’s 1953 decision in Youngstown v. Sawyer would be critical in Congressional consideration of such a decision. In a canonical opinion by Justice Robert Jackson, the court invalidated President Truman’s attempt in 1952 to use his powers as commander in chief to nationalize steel mills in the face of labor strikes. The decision imposed fundamental constitutional limits on the president’s power to claim that a national emergency — in this case, the Korean War — allowed him to override express provisions preventing him from using those powers domestically.
Mulvaney eggs Trump on in shutdown fight
Days after replacing John Kelly, the president’s new chief of staff is already putting a personal stamp on the role.
.. But Mulvaney served as one of the president’s few companions in what Trump himself described as an empty and lonely White House over the holidays, working out of the West Wing when most White House aides were on vacation or furloughed as part of the partial shutdown Trump has precipitated... Thanks to changes the Trump administration negotiated to the NAFTA trade deal last year, Mulvaney explained, “American workers are going to do better, the government is going to do better, and you could make the argument that Mexico is paying for it in that fashion.“