Welcome to 2019. Donald Trump apparently wants to call this a "strike," not a shutdown, because our President doesn't know what a "strike" is. Is anyone going to pretend to be shocked?
How does this end? We have a new possibility. Trump declares a national security emergency, and simply takes federal money not appropriated for "the wall," and uses it to start building it without congressional approval. What are the odds that he actually does it? Right now, I'm going to put the odds at... something I'm going to call, "who the fuck knows, but relatively high." We are beyond the point at which this kind of thing can be discussed with any statistical precision, which makes people like me uncomfortable. Phrases like, "who the fuck knows," make me comfortable. The need to use them doesn't.
Is this... legal? Kavanaugh will make it legal. (I'm very, very sorry for that.)
No. It's not legal. Trump's new batshit proposal wouldn't be even remotely legal. It is the fringiest of the fringe interpretations of "unitary executive" theory. Remember that? I have written about it a bunch. Basically, the powers of the executive branch are vested solely in the president, and taken to its logical extreme, whenever there is a crisis, the president's powers become essentially unchecked. Who decides what is a crisis that warrants the removal of checks? The president, of course. This was the model used by John Yoo to justify the use of torture, despite the fact that torture is illegal, back during the George W. Bush administration, and it can be used to justify anything. Taken to its logical extreme, advocates of a hardcore unitary executive theory will assert that presidents are basically dictators bound only by their own discretion because any time they assert a national crisis invoking national security, etc., their powers become unchecked, and presidents alone decide what constitutes those times when their powers are checked. Basically, under unitary executive theory, a president has the constitutional authority to declare you a terrorist, unilaterally, order you nabbed off the street, torture you into confessing, and then use that confession (even though torture will get anyone to confess to anything, regardless of whether or not it's true, which is the real point of torture) to keep you locked away forever with no access to a real legal system, and continually tortured for the rest of your life based on the bullshit premise that you are a terrorist who might have information. Under unitary executive, a president can order this for anyone, just for shits and giggles, and it's constitutional. Why? NATIONAL SECURITY!!! John Motherfuckin' Yoo.
Those constitutional rights? They're really more like suggestions. An Amazon.com wish list, if you will, according to unitary executive theory. Stuff you kinda want, but maybe don't think you can afford right now. Maybe someday.
Republicans become devotees of this model whenever the president is a Republican, and scream about "executive over-reach" if the president is a Democrat every time he sneezes and reaches for a Kleenex. Right now, though, there's a guy in the White House with an "R" after his name. Can he legally take money from elsewhere in federal accounts to build his idiotic wall by claiming some bullshit national emergency? No. Not unless you take these models of executive power to insane extremes.
So, let's talk about that. Trump has very strong incentives to do so. When I wrote about potential resolutions to the shutdown earlier, it didn't even occur to me that he would pull something like this, because it was too crazy for me to contemplate, but now that it's on the table, it's real, and a high likelihood. Democrats can't cave here. Trump, though? He admitted in one of those meetings that he is concerned primarily about the optics of caving, and the longer this goes on, the more embarrassing it gets for him to cave.
What really motivates Trump? Dominance displays. Claiming that he can do whatever he wants without congressional authorization is the ultimate dominance display. And that's why there's a high likelihood that he'll do it.
Now, what about that legality issue. It's bullshit, right? So, what about the courts? Brett Kavanaugh. You know he's going to back Trump. He basically doesn't think there are any checks on executive power, and has written so. Thomas and Alito too. Movement conservatives, both. Gorsuch? Likely, but not certain. Don't count on his ethics. There's a reason I usually write his name as "Plagiarist-Gorsuch." Roberts is the wild card here. He has some professional ethics. I don't know what he'd do. I also don't know if Trump would follow a court order on this.
There are two other considerations, though. First, Ginsburg, narcissistic fool that she is, could drop dead at any moment because she wasn't willing to do what Kennedy did and ensure that her own party could name her replacement. The other consideration is that all Trump really needs to do is drag this past the election next year. He doesn't care about the wall. He just cares about the posturing. Could he manage that with some stupid stunt? Maybe.
And he might decide that that's better than caving. Hell, having the Court rule against him still might be a more appealing option to him than caving. That's just one more enemy for him to run against in 2020.
Now, what does this mean for 2019? I don't think there is much mystery here. Trump cares about a few things. He loves to do dominance displays, particularly when he is frustrated because he isn't being feted. A partial government shutdown is one of the least harmful ways that can play out.
The other ways that Trump can and will lash out... that's going to be scarier. The reason that the declaration of an emergency is appealing to Trump is that it is based on unilateral executive authority. There is one arena in which presidents really do have unilateral authority. The military. And Mattis is gone. Trump may try to fire Powell, with Powell saying no. He may try to pull a full-blown Saturday Night Massacre at the DoJ, to shut down Mueller. Sorry, "strike" Mueller. That's been looming for a while anyway.
Then, we have the constitutional showdowns that will ensue when Democratic Chairs of House Committees issue subpoenas and Trump and his people just say no. 'Cuz.
This is going to be absolutely batshit crazy. A year that starts with a shutdown in progress? With the Senate Majority Leader saying that he doesn't even have a role in this? (Yes, McConnell said that.) This is going to be a shitshow. Remember Gallagher? We're in the front row. It's not fruit anymore. He's smashing piles of shit, and splattering it on us.