AMERICA’S federal government shutdown is about to enter its 21st day. President Donald Trump has refused to sign any spending bill that does not allocate $5.7bn to build a wall on the country’s southern border. Democrats in Congress oppose the wall, and say they will not begin negotiations over funding border security until the president agrees to reopen the government. With both sides dug into their positions, prospects for a deal look dim.
As a result, Mr Trump is toying with the idea of declaring a “national emergency”. In theory, that would allow him to bypass Congress and reallocate funds designated for other purposes to construction of the wall. “If we don’t make a deal with Congress, most likely I will do that,” the president said on January 10th. “I can’t imagine why not.”
Presidential declarations of emergency are surprisingly routine, and often long-lived. There are 31 official national emergencies that remain in effect, dating as far back as 1979. The vast majority are executive actions that limit transactions with actors in rogue, war-torn or corrupt states, or with international criminals. Among the few that do not fall into this category are George W. Bush’s declaration of emergency following the terrorist attacks of September 11th 2001, and one signed by Mr Trump last year, which seeks to protect America from foreigners seeking to meddle in its elections.
But no current emergency usurps Congress’s constitutional power of the purse. If Mr Trump does pursue this path, he is likely to ground his action in one of two federal statutes. The first permits the secretary of the Army to divert funds intended for military civil-works projects towards military construction projects. The second gives the defence secretary the authority to begin military construction projects using funds that have yet to be assigned to specific purposes.
It is not only Democrats warning Mr Trump against this course of action. Prominent conservatives, too, fear that such a precedent might come back to haunt them. From 2011-17, Republicans used their legislative majorities to thwart Barack Obama’s spending initiatives. A future Democratic president might well cite Mr Trump’s action to shuffle around funding unilaterally, over the objections of a hostile but helpless Congress.