Now that the partial government shutdown is over — for now — President Donald Trump will get to formally deliver the annual State of the Union address on Feb. 5. Undoubtedly, the White House will be looking to use the speech to close the deal on the border wall that has prevented a deal from being struck.
As far as traditions go, the State of the Union is an important one. For almost every year for the past century, the President delivers a speech on how the country is faring, discharging his duty under Article II, Section 3 of the Constitution before a joint session of Congress.
You can have Republican presidents delivering the speech to a Democratic majority House and vice versa. It has happened regardless of the partisan composition of Congress, and is emblematic of the Union itself. That, whatever our differences politically, we are still one country.
For now, the state of play in Congress includes a three-week continuing resolution to Feb. 15. This gives President Trump a fresh opportunity to set the parameters of debate, by outlining what he will and will not sign.
That’s how it is usually done. Congress passes a bill and if the President approves it, he will sign it, if not he will return it with his objections — that is, with a veto. Therefore, it’s up to Congress to put something on the table that he will sign. In the normal course of business, with a Republican Senate and a Republican President, that would include Republican priorities, like the wall.
But this is not the normal course of business. Regardless of the composition of Congress, Republicans in recent years have done a pretty good job of giving Democrats’ effective veto power of their own over all appropriations bills that keep the government open — lest the GOP be blamed for the ensuing shutdown.
In 2013, a Republican House could not have their priorities included in a bill in which they sought to defund the implementation of Obamacare, lacking a Senate majority and the White House at the time. A government shutdown then yielded no concessions.
Republicans could have the White House, Senate and House as in 2017 and 2018, and it won’t matter, because Democrats will use the Senate filibuster to keep the bill off the floor. No shutdown was attempted until the end of the session after the midterm elections, which dragged into 2019, but illustrated the President’s point all along that Democrats would not allow a spending bill to include the wall.
Such an undemocratic outcome, where Republicans run on issues, win the election, and then are stymied by a legislative process that acts to thwart the will of the people, can and should be a part of Trump’s appeal to Congress. It’s not merely about reopening the government, it’s about ensuring that the voters are heard when they speak on an issue.
But moreover, it’s a national security issue. It’s an issue that affects communities. Real lives are being lost. In his national address on Jan. 8, President Trump noted that, tragically, “In the last two years, ICE officers made 266,000 arrests of aliens with criminal records, including those charged or convicted of 100,000 assaults, 30,000 sex crimes, and 4,000 violent killings. Over the years, thousands of Americans have been brutally killed by those who illegally entered our country, and thousands more lives will be lost if we don’t act right now.”
Trump added, “This is a humanitarian crisis — a crisis of the heart and a crisis of the soul.”
Just like the national address he delivered from the Oval Office, the President will likely once again outline the humanitarian stakes of not protecting the border. As he has done with past speeches, watch for a few Angel families to be invited and have their stories told before a national audience.
In the meantime, pressure can be brought to those Democrat offices in the House and Senate thought to be wavering on the issue. There are 31 House districts in areas that President Trump carried in 2016. A recent RNC-Public Opinion Strategies poll in 10 of those districts found that 50 percent favored the compromise Trump offered on the wall that included $5.7 billion for the steel barrier and a 3-year extension of DACA, compared to just 43 percent opposed. That’s more than enough to cobble together a majority in favor of a spending bill that includes the wall — if pressure is brought to be bear. And especially if there’s even any desire for compromise.
If there isn’t — Congressional Democrats may hate the wall more than they love DACA, for example — then the President is likely to simply declare a national emergency, invoking powers that Congress has already granted, even if the route through courts afterward will take some time. 33 U.S. Code Section 2293(a) provides that “In the event of a declaration of war or a declaration by the President of a national emergency in accordance with the National Emergencies Act [50 U.S.C. 1601 et seq.] that requires or may require use of the Armed Forces, the Secretary, without regard to any other provision of law, may (1) terminate or defer the construction, operation, maintenance, or repair of any Department of the Army civil works project that he deems not essential to the national defense, and (2) apply the resources of the Department of the Army’s civil works program, including funds, personnel, and equipment, to construct or assist in the construction, operation, maintenance, and repair of authorized civil works, military construction, and civil defense projects that are essential to the national defense.”
Ultimately, that may be where President Trump winds up, but not before Feb. 5. So far, Trump has attempted to negotiate in good faith a legislative solution to the budget that includes the southern border wall, and Congress still remains the quickest way to get the wall project rolling and break ground this year in time for his 2020 bid for reelection. Now, the State of the Union will give Trump one last chance to close the deal in Congress.
Robert Romano is the Vice President of Public Policy at Americans for Limited Government.
