Sweet and Sour Shutdown

​President Trump on Wednesday attempted to sweeten negotiations with congressional leadership on ending the partial government shutdown. He handed out M&M’s, Baby Ruth bars, and Butterfinger bars at a White House meeting to discuss how to end the shutdown.

The President’s candy is the only sweet part of this shutdown. Everything else is sour. For example:

• 800,000 federal employees and their families are trying to get by without paychecks. Many are on the lower end of the income scale and live paycheck-to-paycheck.
• Thousands of federal contractors and other private businesses that rely on the federal government are hurt in a variety of ways, including decreased revenue, furloughed contract workers, and inability to access government services such as reviews of initial public offerings by the Securities and Exchange Commission.
• Many food inspections by the Food and Drug Administration are on hiatus.
• A significant number of TSA Agents have called out of work.
• Millions of Americans potentially face eviction from federally-supported housing if the shutdown drags on.
• The cost of the shutdown to the U.S. economy is about $1.2 billion per week (a small percentage of overall GDP, but to most people $1.2 billion is still real money).
• Fitch Ratings suggests that the breakdown in U.S. fiscal policymaking embodied by the shutdown could affect the Nation’s credit rating. The next test will be the debt limit, which comes into play in March and will require Washington to reach an agreement to avoid a default crisis later in 2019.
• Policy makers are at a complete impasse in talks to end this mess.

One possible way to end the shutdown is for President Trump to exercise emergency authority to construct the border wall he demands. An approach the White House has been considering involves authority to use military construction money in the context of a “national emergency” that “requires use of the armed forces” (section 2808 of Title 10 of the U.S. Code).

If he makes an end-run around Congress to find money for the wall, his next step could be to signal willingness to sign legislation to reopen government. It is questionable, however, whether the President has the legal authority to use a “national emergency” as the basis for moving money appropriated for other purposes to border wall construction. It’s certainly unprecedented to use military construction funds for this type of project. But he could make that decision, move on from the shutdown in the short term, and let the courts settle the legal issues.

Two things are likely to happen if he plays the “national emergency” card. First, Congress will object to it as an abuse of executive power. Certainly, Democrats will complain loudly and take legislative steps in the House and judicial steps in the courts to block the action. However, if he uses military funds, Democrats won’t be the only ones complaining. Rep. Mac Thornberry (R-TX), the Ranking Republican Member of the House Armed Services Committee, said that he is “against using Department of Defense dollars for any other purpose.” Other Republicans are certain to be against the move based on opposition to repurposing of military funds and because many have direct interests in military construction projects already approved by Congress.

A second outcome of a “national emergency” declaration, especially if it survives legal challenge, is the precedent that it will set. In this case, Republicans who support the border wall need to be careful of what they wish for. If President Trump can stretch a “national emergency” declaration to justify funding his signature domestic policy issue – illegal migration across the southern border – what is to prevent a future President from using the same authority to go around Congress? It’s not impossible to imagine a President Warren-Harris-Sanders-Booker-Fill-in-the-Blank considering a “national emergency” to advance, for example, climate change policies.

There is an old-fashioned way out of this shutdown, and that is for policy makers to get serious about compromising and reach an agreement where both sides can claim victory. The scope of such an agreement may need to go beyond border security or even broader immigration issues. Sen. Roy Blunt (R-MO) has offered an interesting suggestion when he said “one way to make it bigger would be, ‘Let’s talk about next year’s spending numbers as part of this.”

The discretionary spending limits that are set in law will drop dramatically in FY 2020. Absent a change in law, the defense limits will be reduced by $71 billion (11 percent) and the nondefense limits will drop by $55 billion (9 percent) relative to FY 2019. Both parties know that the FY 2020 numbers are unworkable and that a new budget agreement will be necessary. Unfortunately, it could take weeks to negotiate a new budget agreement, while there is an immediate need to end the shutdown.

​Until there’s a resolution to the shutdown, there will continue to be M&M, Baby Ruth, and Butterfinger candy wrappers falling out of overstuffed National Park trash bins. That’s not so sweet.