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The Evolving Use of Presidential Emergency Powers and Government Shutdowns

Ever as Newt Gingrich brought the federal government to a halt for three weeks in 1995, “birthing a new era of American gridlock,” as NPR later put it, the shutdown has been one of the capital’s recurring set pieces. Republicans, as the official anti-government party going back to the Reagan era, have usually been blamed.Maybe that’s why Democrats are charging ahead this time.Party leaders on Capitol Hill are calling the partial closure of the government that began at midnight on Wednesday “the Trump shutdown” and claiming that they have no choice but to stand up to an “erratic and unhinged” President in order to protect health-care subsidies that are about to expire for millions of Americans. With Republicans in charge of the White House and both houses of Congress, initial polls suggest that the public is inclined to pin obligation on the G.O.P. once again.

To which I’d suggest: Be careful what you wish for. What looks like good politics might also prove to be another step in the undoing of the Constitution’s checks and balances.

During Donald Trump‘s first term, the President’s demand that Congress fund his proposed wall on the Mexican border led to the longest shutdown in history-thirty-five days, from December 22, 2018, to January 25, 2019. Trump caved, agreeing to reopen the government even without the nearly six billion dollars in border-wall funding that he had demanded.

this capitulation was initially portrayed as a triumph for the new Democratic majority under House Speaker Nancy Pelosi and a stinging defeat for Trump, with headlines such as “Trump Relents on Wall” (Politico), “trump Concedes” (CNN), and “Trump is Down, but Not out” (New York post)-but it was not. It was, in fact, a moment of revelation in which he realized that he could do just about anything he wanted.Trump got his border-wall money. He simply went ahead and took it. The history of the presidency may never be the same.

With the encouragement of the same radical advisers, such as Stephen Miller and Russell Vought, who are at the center of the action today, Trump declared a national emergency at the border, thus creating a pretext for grabbing the funds that he wanted from the military construction budget and other programs. Even some Republicans called this a blatant abuse of power, but, when Democrats and a number of institutionalist holdouts in the G.O.P. joined together to pass a bill meant to bar Trump from seizing the money without congressional authorization, Trump successfully vetoed it. instead of checking Trump’s power play, Congress proved to be incapable of stopping it.

At least in Trump 1.0, the emergency decree was a one-off response to a specific funding fight with Congress.In his second term, Trump has learned to wield the emergency pen as if it is a magic wand granting him unlimited powers. It’s his template, his new default setting. And the Republican-led Congress has stood by and let it happen. Since returning to the White house in January, he’s declared no fewer than…