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Shutdown Day 17: Things Are About to Go from Bad to Worse

Day 17 of the shutdown came and went with no apparent progress being made. Actually, it is worse than that. Not only did the Democrats and Republicans fail to make progress, they each spent the day figuring out how to stymie the other side. This would appear to be a tacit acknowledgment that both sides are in it for the long haul.

The biggest news of the day is that Donald Trump is going to be delivering an address from the Oval Office tonight at 9:00 p.m. EST. Here's the tweet announcing it:

I am pleased to inform you that I will Address the Nation on the Humanitarian and National Security crisis on our Southern Border. Tuesday night at 9:00 P.M. Eastern.

— Donald J. Trump (@realDonaldTrump) January 7, 2019

For a portion of the day, the various news networks (outside of Fox News, of course) were undecided about whether or not to broadcast the address, but in the end they all decided to cover it.

The networks' reluctance is because there are only two things that Trump might do with this address. The first possibility is that he will use it to whip his supporters into a frenzy, repeating the same talking points and dubious statistics his administration has been trumpeting for the last week. In that case it would be a propaganda speech, and the journalists at NBC, ABC, CNN, etc. don't want their outlets to be used as a platform for that. Nor do the network suits particularly want to preempt their primetime programming. However, the second possibility is that if Trump is actually going to attempt the "national emergency" route, this would be the time to do it. In that case, the speech would be big news, and a historic occasion (though not in a good way). No news outlet wants to miss out on that, and so they're going to be safe rather than sorry.

The other big move from the administration was an announcement that the shutdown, regardless of how long it goes on, would not result in delays for people getting tax refunds. This is an obvious PR move, given that delayed tax refunds would have a negative effect on tens of millions of people, many of whom would be very angry. Exactly how viable it is for the IRS to follow through on this promise in the event of a prolonged shutdown, given that they are currently 12% staffed, is an open question.

The Democrats were quieter than Trump, but only a little bit. Their biggest maneuver of the day was an announcement that they are going to use the filibuster in the Senate to try to block a Syria sanctions bill, so as to keep 100% focus on the shutdown. Minority Leader Chuck Schumer (D-NY) suggested that his caucus may try to stall all legislation from here on out, so that nothing takes up the Senate's time and attention before the shutdown is over.

Beyond that, the Democrats also demanded time following Donald Trump's address to respond to whatever he says. It looks like most networks will grant the request. Also, one particularly prominent Democrat spoke out on Monday. It was Jimmy Carter, who became the latest ex-president to respond to a claim that Trump made on Friday, namely that he (Trump) had talked to previous presidents, and that they had expressed regret about not building a wall along the Mexican border. "I have not discussed the border wall with President Trump, and do not support him on the issue," Carter said in a statement. George W. Bush and Bill Clinton had already released similar statements, so unless Trump is having secret confabs with his good friend Barack Obama, or is making extensive use of a Ouija board, this was yet another lie.

Undoubtedly, Trump is not going to announce a big speech and cancel it. So, this situation presumably remains in a holding pattern for at least another day, and whatever he says will be the main story tomorrow. (Z)

Can Trump Really Declare a National Emergency?

This is a question to which we may soon have an answer. And until Donald Trump actually tries it, nobody will know for sure. That said, we can certainly explain the statutory basis for the claim, and talk about the obstacles Trump would have to overcome if he goes this route.

To start, Article II of the Constitution has been (very liberally) interpreted as giving the president pretty broad powers to do what he deems necessary in the event of a national emergency. Quite a few of the presidents between 1860 and 1970 stretched the definition of "emergency" very far; Abraham Lincoln, Franklin D. Roosevelt, and Harry Truman were particularly aggressive in this regard. This eventually led to a handful of Supreme Court cases, and then a Senate investigation, and then a law meant to codify this power and to partially rein it in. That law was the National Emergencies Act, which was signed into law by Gerald Ford in 1976.

It is this act that Trump will try to use if he attempts to build his wall by declaring a national emergency. Specifically, this passage from 10 U.S.C. 2808:

In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces. Such projects may be undertaken only within the total amount of funds that have been appropriated for military construction, including funds appropriated for family housing, that have not been obligated.

This makes quite clear that, in the event of a national emergency, the president (via the Dept. of Defense) can take money that has already been appropriated by Congress for some other military construction project, and shift it over to an "emergency" project that has not been approved by Congress.

If Trump attempts to invoke 10 U.S.C. 2808, he is going to run into two issues, either of which could derail his plans. The first is that Congress passed an additional law, in 1985, that specifies the circumstances under which a national emergency comes to an end. The very first of those circumstances, listed in 50 U.S.C. 1622, is this: "there is enacted into law a joint resolution terminating the emergency." In other words, it is possible for Trump to say "there's a national emergency" and for Congress to say, "Uh, no there isn't." Undoubtedly, Speaker Nancy Pelosi (D-CA) and her caucus would adopt the necessary resolution very quickly, maybe even before the night is out, if that is indeed what Trump announces tonight. That would then take Senate Majority Leader Mitch McConnell (R-KY) off the sidelines and into the thick of the action. Would he and his Senate colleagues really want to sit idly by while the President engages in a pretty extreme, and widely unpopular, exercise of power, and choose not to take the action that they are statutorily entitled to take? They may soon have to decide.

Assuming that McConnell & Co. do sit on their hands and do nothing, Trump still has to worry about issue number two. He definitely has broad powers in the case of an actual national emergency; the soft part of his argument is whether or not the current circumstances actually constitute one. In all of its lawmaking on the subject, Congress never got around to actually providing a definition of "national emergency." So, in the inevitable lawsuit, the courts (and, eventually the Supreme Court) would be left to look at past national emergencies and to see how this one compares. A list of every national emergency declared between 1970 and 2007 is here (advance to page 16), while a list of the 28 currently-active national emergencies is here. The great majority of declarations are financial in nature, like "Blocking Iranian Government Property" (Nov. 14, 1979) or "Blocking Property of Transnational Criminal Organizations" (Jul. 25, 2011). The rest address threats to the physical safety of the United States, like "Chemical and Biological Weapons Proliferation" (Nov. 16, 1990) and "Declaration of National Emergency by Reason of Certain Terrorist Attacks" (Sep. 14, 2001).

If and when Solicitor General Noel Francisco ends up before the Supreme Court, he's going to face a lot of questions about exactly how similar this "emergency" is to other emergencies. Presumably, he will try to argue that lots of potential terrorists try to sneak across the Mexican border, but if Fox News wasn't buying it, the justices aren't likely to buy it, either. They may also wonder why there is such a huge risk of terrorists sneaking across the 1,954-mile U.S.-Mexico border, but no risk of them sneaking across the 5,525-mile U.S.-Canada border. In addition, nearly all of the previous national emergencies had some clear precipitating event, like the overthrow of the Shah of Iran or the start of the Persian Gulf War or the 9/11 attacks. The justices may want to know exactly what the precipitating event was here, and why this wasn't a national emergency three months ago, or three years ago.

In short, it's possible that Trump can make this stick if he wants to try it, but he will have a tough hill to climb, and there is a big risk he could suffer a high-profile, embarrassing failure, while also taking even more ownership of the shutdown and making himself look even more like a would-be strongman. We'll find out what he's decided when The Apprentice...er, his speech airs tonight at 9:00. (Z)

How Much Is $5 Billion, Really?

The observation has been made, quite a few times, that relative to the overall federal budget, the $5 billion Donald Trump wants for wall construction is a drop in the bucket. Looked at in that way, that is absolutely true. However, it is also true that if that money goes toward a wall, it's not available to be spent elsewhere. And so, another way to look at it is to consider what $5 billion might pay for, and whether or not those things are more valuable than a wall. The National Priorities Project has put together such a list. Here are some other things the federal government could do with $5 billion:

• Provide a year's worth of Medicaid for 1.4 million people
• Increase federal spending on renewable energy by 250%
• Increase the EPA's funding by 60%
• Put 90,000 people to work for one year repairing America's infrastructure
• Increase federal funding for K-12 public schools by 30%
• Fund the National Endowment for the Arts until 2051
• Double heating assistance for low-income households
• Double federal funding for substance abuse and mental health treatment
• Accept 11 times more refugees than in 2018
• Double funding for citizenship and immigration services

Under the circumstances, none of those is likely to happen, particularly the last two. However, the next time someone says "It's only $5 billion," it's worth keeping this list in mind. (Z)

Trump Administration May Try to Suppress Parts of Mueller Report

It's hard to say if there is any actual news here or not, but Bloomberg is reporting that Robert Mueller may submit his findings about Russian interference with the 2016 election as early as February, and that the Trump administration may try to suppress some portions with a claim of executive privilege.

There are a couple of reasons we are not so sure this is really news. First of all, there have been an awful lot of "Mueller is almost done" stories, and none of them has yet been right. It's not even clear from Bloomberg's reporting if the entire investigation is supposed to be complete, or if it's only the parts dealing with Russian interference, while his efforts on the collusion front, the obstruction of justice front, the money laundering front, and any other unknown fronts would continue. If Bloomberg's source is really saying that the whole thing is in the home stretch, surely they must be in error.

The other reason we hesitate to call this "news" is that it's been clear for months and months that Team Trump would use every means at their disposal, including invoking executive privilege, to obscure or delay the report. So, we didn't particularly learn anything new by getting confirmation of that. And it won't work, incidentally. There are a lot of people who have a vested interest in leaking the report, and if one of them gets their hands on it, it's all over. Failing that, Congress has a few tricks up their sleeves, like subpoenaing Mueller and asking him what he found. And, if nothing else, Trump would surely lose in court (after several months), just as Richard Nixon did under the same basic circumstances.

Time will tell, but for now we are taking this whole story with several handfuls of salt. (Z)

Ruth Bader Ginsburg to Miss Oral Arguments for the First Time

In news that surely sent chills up the spines of liberal Supreme Court-watchers everywhere, it was announced on Monday that Ruth Bader Ginsburg will not be present for oral arguments for the first time in her 25-year Supreme Court career, as she recovers from her recent cancer surgery.

In the short term, Ginsburg's absence won't matter too much, as she will make up for her absence by reading briefs and transcripts of the oral arguments. And it is possible that this is just a blip, and she'll be back to 100% once she's done with her convalescence. On the other hand, and at risk of being gauche, she is 85 years of age, and has gone through three cancer surgeries already. So, it is possible this is a sign that the end is nigh. Ginsburg wants desperately to hold on until the next Democratic president takes office. Liberals across the country share that view, and undoubtedly will be doing extra toasts to her health this week. (Z)

How Re-electable Is Donald Trump Right Now?

Morning Consult has compiled net approval ratings for each month of Donald Trump's presidency. They've just released their latest, which cover the month of December, and thus 11 days of federal government shutdown. We thought it might be instructive to try to use them to hazard a guess as to where the President stands in terms of his 2020 electoral chances.

We must begin this exercise with the usual caveat that a week in politics is a lifetime, and thus the remaining two years of his term is an eternity. The economy could go south, the Mueller report could come out and be very averse to Team Trump, the government shutdown could linger for six months with the President getting most of the blame. In those scenarios, things would presumably get much worse for Trump than they are now. On the other hand, the shutdown could end quickly and blow over, Trump could bring eternal peace to the Korean peninsula, or his staff could solve America's opioid crisis. Or maybe Jared Kushner could get everyone in the Middle East to come together and sing Kumbaya in harmony. In those scenarios, things would presumably get much better for Trump than they are right now.

There are also two key decisions underlying this particular analysis. The first is that Morning Consult does not break its data out by congressional district, so we will have to treat Maine and Nebraska (which can theoretically split their electoral votes) as monoliths. The second is that these numbers are, as noted, net approval ratings. They are not meant to judge voter intent, per se. However, reelection bids are, to a very great extent, referendums on the sitting president. In other words, we think that how popular/unpopular Trump is will actually be more significant than who the Democratic candidate is, and what he/she says or does.

With that out of the way, this chart lists Trump's net approval rating in January 2017 and his election results for each of the 50 states (plus the District of Columbia). It is sorted by the net approval rating. States that Hillary Clinton won are blue, states that Trump won are red:

State	Trump Net Approval Jan. 2017	Trump Margin Nov. 2016
D.C.	-31	-86.4
Hawaii	-13	-32.2
Maryland	-13	-26.4
California	-6	-30.1
Massachusetts	-4	-27.2
Rhode Island	-4	-15.5
Vermont	-2	-26.4
Washington	1	-15.7
Colorado	1	-4.9
New Hampshire	1	-0.4
New Jersey	2	-14.0
Oregon	2	-11.0
Minnesota	3	-1.5
Connecticut	5	-13.6
Wisconsin	6	0.8
New York	8	-22.5
Delaware	8	-11.4
Virginia	8	-5.3
Maine	8	-3.0
Michigan	8	0.2
Illinois	9	-17.1
Iowa	9	9.4
Pennsylvania	10	0.7
Nevada	10	-2.4
Ohio	14	8.1
New Mexico	17	-8.2
Georgia	18	5.1
North Carolina	18	3.7
Missouri	19	18.6
Arizona	20	3.5
Texas	20	9.0
South Dakota	21	29.8
Florida	22	1.2
Indiana	22	18.9
Nebraska	23	25.1
North Dakota	23	35.7
Alaska	24	14.7
Montana	24	20.4
Kansas	24	20.6
South Carolina	25	14.3
Utah	27	18.1
Idaho	29	31.8
Arkansas	30	26.9
Louisiana	31	19.6
Tennessee	33	26.0
Mississippi	34	17.8
Kentucky	34	29.8
Oklahoma	34	36.4
Alabama	36	27.7
West Virginia	37	42.1
Wyoming	40	45.8

As you can see, there's a fairly close correlation (as we would expect) between Trump's net approval and the states that he won. He came up short in every state where his net approval was 5 points or worse. States where his net approval was 6-10 points were basically a toss-up, with four going for him and six against. And states where his net approval was 11 points or better, he won, with the exception of New Mexico.

Working with that as our guide, here is a chart of Trump's current net approval rating, along with the electoral votes for each state. Trump did not win any state where his net approval was 5 points or worse, so we will project all of those for the Democrats. He won every state (except New Mexico) where his net approval was 11 points or better, so we will project all those for Trump. And we will err in Trump's favor and assume that he wins 100% of the states where he's currently got a 6-10 point net approval, as opposed to the 40% of such states that he won in 2016:

State	Trump Net Approval Jan. 2019	Electoral Votes
District of Columbia	-62	3
Vermont	-31	3
California	-29	55
Massachusetts	-29	11
Hawaii	-28	4
Maryland	-28	10
New York	-23	29
Washington	-23	12
Oregon	-22	7
Illinois	-21	20
Connecticut	-20	7
Rhode Island	-19	4
New Mexico	-19	5
New Jersey	-18	14
Delaware	-16	3
Colorado	-16	9
Minnesota	-14	10
Michigan	-12	16
Wisconsin	-12	10
Nevada	-11	6
Iowa	-10	6
New Hampshire	-8	4
Arizona	-8	11
Maine	-6	4
Pennsylvania	-6	20
Virginia	-3	13
Florida	-3	29
North Carolina	-3	15
Georgia	-3	16
Ohio	-3	18
Kansas	2	6
Utah	3	6
Missouri	3	10
Texas	4	38
Alaska	4	3
Montana	4	3
Indiana	8	11
Nebraska	8	5
South Carolina	9	9
North Dakota	9	3
Arkansas	11	6
Idaho	11	4
Louisiana	13	8
Oklahoma	13	7
South Dakota	15	3
Kentucky	15	8
Tennessee	16	11
Mississippi	17	6
Alabama	21	9
West Virginia	26	5
Wyoming	32	3

This projection method has nothing but bad news for the President. If, consistent with his 2016 results, he only takes the states where his net approval is currently 6 points or better, he'd be crushed in the Electoral College, 440-98. Even if we grant him every single state where he's above water, he still gets trounced 374-164.

Now let's do a version of a chart that we have during election season. This is once again ordered by his current net approval, and shows how deeply he'd have to go into the negatives to win reelection:

State	Trump Net Approval Jan. 2019	Electoral Votes	EV Tally
District of Columbia	-62	3	538
Vermont	-31	3	535
California	-29	55	532
Massachusetts	-29	11	477
Hawaii	-28	4	466
Maryland	-28	10	462
New York	-23	29	452
Washington	-23	12	423
Oregon	-22	7	411
Illinois	-21	20	404
Connecticut	-20	7	384
Rhode Island	-19	4	377
New Mexico	-19	5	373
New Jersey	-18	14	368
Delaware	-16	3	354
Colorado	-16	9	351
Minnesota	-14	10	342
Michigan	-12	16	332
Wisconsin	-12	10	316
Nevada	-11	6	306
Iowa	-10	6	300
New Hampshire	-8	4	294
Arizona	-8	11	290
Maine	-6	4	279
Pennsylvania	-6	20	275
Virginia	-3	13	255
Florida	-3	29	242
North Carolina	-3	15	213
Georgia	-3	16	198
Ohio	-3	18	182
Kansas	2	6	164
Utah	3	6	158
Missouri	3	10	152
Texas	4	38	142
Alaska	4	3	104
Montana	4	3	101
Indiana	8	11	98
Nebraska	8	5	87
South Carolina	9	9	82
North Dakota	9	3	73
Arkansas	11	6	70
Idaho	11	4	64
Louisiana	13	8	60
Oklahoma	13	7	52
South Dakota	15	3	45
Kentucky	15	8	42
Tennessee	16	11	34
Mississippi	17	6	23
Alabama	21	9	17
West Virginia	26	5	8
Wyoming	32	3	3

To win, he would have to take every state up to the ones where his net approval is currently six points underwater. To equal his 2016 total of 306 EVs, he'd have to claim every state up to the ones were his net approval is currently 11 points underwater. Referring back to the first chart, in every single state where he was underwater in 2016, he lost by at least 15 points. So, the odds of winning six or more states where he's underwater, along with another six where he's barely above water, would appear to be very long, indeed.

Finally, let's chop this one more way. This chart shows only the states decided by four points or less in 2016 (a.k.a. the swing states), sorted by Trump's margin. Blue states were won by Clinton, red ones by Trump:

State	Trump Net Appr. Jan. 2017	Trump Net Appr. Jan. 2019	Change	Trump Margin Nov. 2016
Maine	8	-6	-14	-2.96
Nevada	10	-11	-21	-2.42
Minnesota	3	-14	-17	-1.52
New Hampshire	1	-8	-9	-0.37
Michigan	8	-12	-20	0.23
Pennsylvania	10	-6	-16	0.72
Wisconsin	6	-12	-18	0.77
Florida	22	-3	-25	1.2
Arizona	20	-8	-28	2.54
North Carolina	18	-3	-21	3.66

Clearly, Trump has taken huge hits in each of the swing states, particularly the critical state of Florida. If he loses just 1% of the vote for every 5% decline in net approval, then he will lose every single one of these states—the four he lost in 2016 will stay lost, and the six that he won will flip.

The answer to the question in the headline, then: Donald Trump does not appear to be remotely re-electable right now. If he actually runs again, and he wants to win, he either needs to get considerably more popular than he is right now, or he needs to get considerably more help from the Russians than he got in 2016. (Z)

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