Shudown is paused for three weeks, and then what?

Reader feedback at end

A novel battle is playing out in DC, the first time to our knowledge that a president has ever used a government shutdown to contest the failure of Congress to authorize funds for one of his top priority programs. In previous shutdowns, it’s been a faction in Congress that was trying to get its way. The outcome in this case may have a strong bearing on the 2020 presidential race, and the dispute is indicative of disturbing trends in our political system that have no obvious solution.

Here's our assessment of where things stand and some tentative thoughts about the path forward

A. Background - The current stalemate about border “wall” [or more accurately security barrier] funding developed over a period of time. Republican leaders in Congress kept telling the president that funding for this purpose would be approved in due course, but “now is not the right time” or words to that effect.

There was no substantial wall funding in the omnibus continuing resolution that Mr. Trump was persuaded to sign in February 2018, although former House Speaker Paul Ryan reportedly assured the president that this omission would be rectified in the next fiscal year – and then failed to follow through. Trump says Paul Ryan reneged on deal to fund wall for omnibus signature, Vince Coglianese & Saagar Enjetti, dailycaller.com,
1/30/19.

Last September, shortly before Fiscal Year 2019 began, wall funding had still not been confirmed – although the word was that up to $5 billion of such funding would be approved after the mid-term elections. Some critics suggested that a wishy washy approach on this issue was making the GOP look ineffectual. Also, the promise of wall funding would presumably be null and void if the Democratic Party regained control of either chamber of Congress in November. Mid-term update: Immigration, Border security (Section I),
9/17/18.

The issue was still open in mid-December, with congressional Democrats adamantly opposed to approving any wall funding. It was commonly thought that the president would go along with another continuing resolution (there had already been two CRs) for the outstanding appropriation bills, which would defer the issue until the new Congress (with Democrats in control of the House) took over in January. Time’s running out for the 115th Congress, Appropriation Bills (Section B),
12/17/18.

At the proverbial last minute, after a wave of complaints from conservatives, the president served notice that he would not sign another CR unless it included significant wall funding (e.g., $5 billion). So a partial government shutdown (discretionary spending for government operations covered by the seven outstanding appropriation bills) began at midnight on December 21. We’re all in the same boat, Build that Wall (Section A),
12/24/18.

Who was to blame for the shutdown? SAFE faulted (1) Democratic congressional leaders for adamantly opposing this project without offering solid reasons for their opposition, (2) Republican congressional leaders for giving lip service to the president’s goal without working to get it approved, and (3) the president for not making clear from the start what he would do if the matter wasn’t resolved to his satisfaction.

As for participants and observers who had sounded the alarm about the continued absence of wall funding, we lauded them for taking a principled stand on an issue that had been festering for far too long. The hope was that a shutdown would induce a real conversation about what should be done.
Ibid.

Determination matters in politics, and when issues arise that can’t readily be compromised they should be debated on the merits – cutting through the procedural niceties and phony talking points. Hopefully, that’s finally going to happen re border security, and if it does the shutdown will definitely have been worth it.

There was little if any meaningful discussion about border wall funding after that, however, and dissatisfaction with the shutdown began to build after government workers started missing pay checks. The Democratic position was that no proposals to resolve the issue would be discussed until the shutdown had been ended, and Republicans lacked effective leverage to force their political opponents to the bargaining table.

On January 25, speaking from the Rose Garden, the president proposed a 3-week pause in the shutdown. The only condition was a good faith effort to negotiate an agreement on the issue before February 15 (when the new CR would expire). But he spelled out the consequences if the outcome was not resolved to his satisfaction. Transcript,
1/25/19.

So let me be very clear: We really have no choice but to build a powerful wall or steel barrier. If we don’t get a fair deal from Congress, the government will either shut down on February 15th, again, or I will use the powers afforded to me under the laws and the Constitution of the United States to address this emergency [i.e., declare an emergency justifying the diversion of funds for construction of the desired barriers]. We will have great security.

The implementing legislation was swiftly enacted, the shutdown was ended for the time being, and a conference committee (CC) was appointed to negotiate the wall funding issue. The members of Congress involved are (CNN
1/28/19):

HOUSE - Six Democrats: Reps. Pete Aguilar (CA); Henry Cuellar (TX); Barbara Lee (CA); Nita Lowey (NY); David Price (NC); Lucille Roybal-Allard (CA); Four Republicans: Reps. Chuck Fleischman (TN), Kay Granger (TX), Tom Graves (GA), Steven Palazzo (MS).

SENATE – Four Republicans: Sens. Roy Blunt (MO); Shelley Moore Capito (WV); John Hoeven (ND); Richard Shelby (AL); Three Democrats: Sens. Dick Durbin (IL); Patrick Leahy (VT); Jon Tester (MT)
.

All of these members serve on congressional appropriation committees, the groups that divvy up funds between government groups and activities after the overall funds for the designated appropriation categories have been appropriated. To our knowledge, there aren’t any engineers or border security experts in the mix. And there probably won’t be much time or inclination for the committee to take testimony on the merits and limitations of border barriers, etc.

So what’s the CC likely to recommend? As discussed in the next section, our guess is that the members will approach this issue on a purely political basis and their deliberations will end in a stalemate.

B. Conference committee – If the CC settled the border barrier issue on the merits, we believe the president’s position would prevail. Given the number of would-be immigrants crossing the southern border, the proposed improvements/additions to border barriers seem reasonable. And it’s patently clear that the political opposition hasn’t been based on fact-based analysis.

Despite Democratic claims, for example, it simply isn’t true that the administration is proposing to build a 2,000 mile concrete wall or anything remotely like that. Time for action re illegal immigration, SAFE letter, News Journal,
1/18/19.

It’s only proposed to upgrade sections of the 654 miles of existing border barriers and add some 150 miles . Also, the administration has reportedly settled on a steel bollard design (aka “steel slats”) for most of the proposed construction. Trump plan would improve current border situation, Byron York, Washington Examiner, 1/10/19.

As for cost, the proposed barrier construction would be a bargain – even if the true number was $25 billion versus the $5 billion or so being requested for FY 2019. The cost of the wall is nothing compared to the yearly cost of illegal immigration, Daniel Horowitz, conservativereview.com,
12/26/18.

“At one million illegal aliens every year, that is a cost of between $74 and $150 billion every year just for that year’s flow of illegal immigrants. And no, there are not only 12 million illegal immigrants in the country. When prompted by Steve King at the judiciary hearing,[HHS Secretary Kirstjen] Nielsen admitted that there definitely are somewhere between 12 and 22 million,“higher than originally estimated.”

Nevertheless, Democratic leaders – notably House Speaker Nancy Pelosi – have continued to insist that no substantial extension or upgrade of the border barriers in place should be countenanced. At one point, Speaker Pelosi said she would support $1 for Trump’s border wall. By late last week, she had upped the ante to funding for 30 miles of a low type of border barrier not suitable for hindering pedestrian traffic (see photo). Pelosi suggests Normandy fence, Susan Ferrechio, Washington Examiner,
1/31/19.

Normandy fencing includes movable barriers that allow vehicles to pass through and the barriers are low enough to climb over. Pelosi said that’s as far as she’ll go on a barrier.

The charge that Democrats aren’t supportive of border security is denied, however, on grounds that far superior technology is available to monitor border crossings. Democrats ready to deal on border barrier – just not on wall, David Lightman, mcclatchydc.com,
2/1/19.

[Rep. Jim] Clyburn, the third-ranking House Democrat, is proposing what he calls a “smart wall,” a border security strategy that uses technology, not concrete. The South Carolina congressman explained his “wall” would involve drones, scanners, and sensors “to create a technological barrier too high to climb over, too wide to go around, and too deep to burrow under.”

This ignores evidence that border barriers have cut illegal border crossings substantially in areas where they have been built, i.e., “walls work,” plus the fact that once across the border would-be immigrants from Central America and beyond can claim asylum and not readily be deported. What do Democrats mean when they say they support border security? Derek Hunter, townhall.com,
1/6/19.

It’s been suggested that the real basis for the Democratic position is to deny any outcome that the president could hail as fulfillment of his campaign promise to “build a wall” along the southern border, thereby keeping the issue alive for the 2020 elections. If Speaker Pelosi maintains her position, we would expect House Democrats on the CC to follow the party line.

For the most part, the media has been blaming the president for the shutdown and downplaying the underlying issue. Make government shutdowns a thing of the past: 3 changes to consider, USA Today,
1/27/19.

. . . the five-week shutdown that ended Friday was colossally stupid, not so much the mother of all shutdowns as the screaming baby of all shutdowns. It was fought over a border wall of limited utility that even Republicans weren't able to fund when they controlled both chambers of Congress.

And so long as public sentiment favors the Democratic position, as it has to date, there’s no apparent reason for Speaker Pelosi to make concessions. Polls: Majority oppose border wall, blame Trump for shutdown, Alan Cone, upi.com,
1/14/19.

The majority of Americans oppose additional funding for the border wall along Mexico and blame President Donald Trump for the subsequent partial government shutdown, according to separate CNN and ABC/Washington Post polls released Sunday.

President Trump’s speech from the Rose Garden on January 25 made a good case for border barrier funding, in our opinion, and was effectively reprised by his remarks in the Cabinet Room on February 1. President says there’s “good chance” he’ll declare emergency to build wall, Robert Schroeder, marketwatch.com,
2/1/19.

So far, however, there has been no apparent shift in the public’s perceptions. The last and best chance to enlist more popular support for border barrier funding may come in the State of the Union address tomorrow night (originally scheduled on January 29, it was postponed until after the shutdown by Speaker Pelosi). And the question is, what could the president say that would move popular opinion in his favor.

C. State of the Union address – SOTU addresses tend to be long on political posturing and short on meaningful substance, but this one may prove an exception. Several observers have suggested that the president should shortcut the coverage of purported accomplishments and policy proposals and focus on the partisan gridlock that is increasingly preventing the government (or at least Congress) from getting much of anything done. See, e.g., What President Trump should say in his State of the Union address, Lester Jackson, joemiller.us, 1/30/19.

Because of the current internal war against American history, traditions and values, and especially against the United States Constitution, it would be inappropriate for me to deliver a standard State of the Union address providing a laundry list of proposals and boasting of my accomplishments, which can be found at whitehouse.gov. Instead, this will be short, in order to focus a spotlight on the threats from within facing all decent, freedom-loving Americans.

Perhaps Mr. Jackson never heard the saying that it’s fine to “call a spade a spade,” but there’s no need to “call it a bloody shovel.” Rather than being motivated to cooperate, the people called out in this imaginary address would be confirmed in their enmity. And the proposed speech lacks a positive call to action, so what would the point be?

Still, it does seem that a shorter and more realistic SOTU address might be helpful under current circumstances. What an opportunity to say illegal immigration has been tolerated for far too long, America’s political leaders are to blame for repeatedly kicking the can down the road, and here are some proposed solutions for consideration.

Maybe the pitch would gain traction and facilitate a constructive settlement, maybe not, but it would seem to be worth a try – particularly as the default options all seem unappealing.

D. Options – If the CC stalemates or comes up with a funding proposal that the president doesn’t deem satisfactory, he can do one of three things:

#SHUT DOWN THE GOVERNMENT – Another government shutdown could be allowed to begin on February 15, as the president said might happen when he proposed the pause on January 25. Given reactions to the initial shutdown, however, it’s unclear why Republicans would want to take the blame for a second shutdown. Accordingly, this seems to be an unlikely choice

#ACCEPT DEFEAT – Pointing to whatever features of the proposed legislation arguably harmonized with his goals, the president could acknowledge the decision of Congress not to approve the level of border barrier funding that he wanted. Given the political capital that the president has invested in demands for border barrier funding, however, it’s hard to imagine him caving so readily.

#DECLARE A NATIONAL EMERGENCY – This option is not as “far out” as it might seem. Not only have numerous presidents authorized emergency actions over the years, but there is statutory authority on the books, e.g., the National Emergencies Act of 1976, that would arguably be applicable. The desired end result in this case would be to divert funds that Congress authorized for other purposes to the construction of border barriers. White House preps emergency wall plan while Congress negotiates, Nancy Cook, politico.com, video (2:55),
1/30/19.

Court challenges to such a strategy would be a near certainty. In addition, the House of Representatives could (and probably would) pass a resolution of disapproval that some Senate Republicans might be tempted to support. Pelosi could force Senate Republicans into awkward vote on Trump emergency powers, David Drucker, Washington Examiner,
2/1/19.

Even assuming the national emergency gambit succeeded, the resulting precedent would be highly undesirable. It’s easy to imagine a future Democratic administration using a similar rationale to divert funds for progressive purposes, e.g., fighting climate change.
Ibid.

Executive branch overreach when normal legislative processes break down is fueling a pernicious trend, the institutional decline of Congress. Assessing record of the 114th Congress,
8/29/16.

For all our good advice, including a suggestion that Congress pass the REINS Act so as to require explicit congressional approval before major new regulations are put into effect, Congress has done essentially nothing to counter this assault on its central role (see Article I of the Constitution) in our governmental system.

So let’s hope that the president hits his border security points solidly in the SOTU address, and Americans are in a listening mood.

**********FEEDBACK**********

#Looks like the president may not get the funding needed to shore up border barriers on this go round. My suggestion would be to request $30 billion for this purpose in fiscal year 2020 and threaten to trim some of the socialist spending in the budget, e.g., Planned Parenthood, using whatever procedural measures are available.

As matters stand, with federal government debt about to hit $22 trillion and the deficit running about $1 trillion per year, we are on the road to fiscal doom. And states like NY, CA, NJ and IL will up the pressure by raising taxes to cover their rapidly growing unfunded pension commitments. The release valve, as always in such cases, is inflation. Buy gold! – SAFE director

Also tiny Delaware, which has accumulated $10 billion in unfunded retirement benefits (primarily for post-retirement healthcare).

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