WHY THE SHUTDOWN WILL SHUT DOWN
We are faced with a unique situation. President Trump has engineered a shutdown of about a quarter of the federal government. About 800,000 government employees are now furloughed or are working without pay. As of this moment, twenty one days after it began, this is becoming the longest lasting government shutdown in our whole history.
The shutdown has occurred because the President promised his rally attendees during the campaign, and since, that he would create a physical wall along this country’s border with Mexico. And, that Mexico would pay for it. The lowest estimated cost suggested for that wall has been 25 billion dollars (twenty five thousand million dollars). Mexico has shown an understandable disinterest in paying for it. So now, the President is pressuring American tax payers to pay instead.
By refusing to accept continuing resolutions that would give departments and agencies the authority to withdraw money from the Treasury if they don’t include money for his wall the President has caused the government to shutdown. This shutdown began before Christmas but apparently Donald Trump allowed himself to be convinced that waiting until the new Democratic majority took over in the House in early January would make it easier for him to get money for his wall. It was, of course, a miscalculation because Nancy Pelosi (who had been pilloried by Trump and the Republicans during the campaign), would have very little incentive to increase funding to construct a wall that seemed to be desired by no one other than the President himself.
There is also a constitutional principle involved here. The Founders back in that famous Philadelphia convention in 1787, assumed that all governmental decisions would be made by the, then small, House and Senate. They would pass their decisions on to the President who “would see that the laws were faithfully executed”. The Founders were also concerned about the control of spending and that was left to the House and the Senate (really the House, all spending decisions had to originate there).
For reasons embedded in his own particular personality, Donald Trump considers himself a kind of autocrat with the members of his party in the House and the Senate making up a subordinate support group. Because of his outsized personality and his ability to gain the support of his rally attending base, elected Republicans have pretty much played along. The incoming Democratic majority is determined to right the ship. Nancy Pelosi simply does not believe that the House has any obligation to support an expensive presidential vanity project that did not originate in the Congress. She has no incentive to compromise at all!
So now the President is stuck. He has a hard time backing down because the right wing media on whom he seems to depend will excoriate him. The Democrats in the House have no reason to compromise. They believe that they need to defend the original constitutional principles. They don’t want to encourage more political blackmail later. So now we hear that the administration will use presidential emergency powers and that Donald Trump will take monies intended for disaster relief (they didn’t spend it in Puerto Rico), and construction money from the Pentagon and have the military build the wall, or at least oversee its construction. That does have the benefit of ending the shutdown. Congress could send over the continuing resolutions and the President would sign them.
The flaw is that it is simply not very clear that the President can legally do that. We have a long history going back to the Founding of reluctance to allow the military to be used inside the country unless we are being attacked (the Founders still had clear memories of their British army attacking their own citizens). Hungry mothers and children trying cross the border are hardly an advancing military force. The President would be bypassing the Congress (they wouldn’t fund it) and using money which had been appropriated by the Congress for other purposes. Litigation could go on for months and for years.
So, what will happen? Nancy Pelosi and the Democrats in the House are not going to fold. To them it is a matter of principle. The key will be the Senate. So far, the 800,000 people effected by the shutdown have missed one paycheck. But as the public becomes more aware that their food is not being inspected and that disgruntled aircraft controllers are staying home in increasing numbers, the pressure will mount. The Republicans in the Senate have a real majority of about two. There are signs that more and more Republican Senators are going to be willing to join Democrats in breaking the impasse. When that happens, the President will have to cave. The great shutdown will be over. There will be no real winners. There will be one major loser and, hopefully, the era of shutdowns will be over.