It’s not often that somebody beats Donald Trump at his own game. But Nancy Pelosi just did. The speaker of the House of Representatives taught the nation a lesson in both civics and negotiation.
The federal government is partially shut down — 800,000 federal employees are furloughed — because Congress and the president disagree over whether the next federal spending appropriation shall include a $5.7 billion “down payment” for wall construction on the southern border of the United States.
Both Congress and the president are exercising their respective constitutional prerogatives over federal spending. They must negotiate an agreement before new federal spending can proceed. Yet their negotiation is at an impasse. So both sides are using their respective leverage to break the impasse. They are lobbying centrists in Congress to concede their votes. And they are appealing directly to voters for support.
A smart negotiator like Speaker Pelosi thinks creatively about leverage. Thus, she told President Trump that, until the federal shutdown is over, he may not deliver his annual State of the Union speech at a joint session of Congress. The president is Constitutionally required to report to Congress on the “State of the Union.” Presidents tend to deliver this report in a speech at a joint session of Congress, with all the attendant prestige. Speaker Pelosi denied President Trump that privilege.
But President Trump is a smart negotiator, too. So he exploited his leverage to deny Speaker Pelosi the privilege of using executive-branch aircraft for a planned trip to Europe and Afghanistan. He told her to fly commercial, instead. Then he sent a letter to Speaker Pelosi reiterating his intent to deliver the State of the Union speech at a joint session of Congress.
Speaker Pelosi could have conceded this position to the president. Nevertheless, she persisted. So the president conceded to Speaker Pelosi, instead! He said he would delay his State of the Union address until after the partial shutdown ends “because there is no venue that can compete with the history, tradition and importance of the House Chamber.” The president now has greater incentive to also concede his desired $5.7 billion for wall construction in order to obtain that sought-after invitation to Congress. Maybe he’ll concede.
Sometimes, however, it’s best to not negotiate. A smart negotiator stays mindful of his best alternative to a negotiated agreement. When the best alternative is preferable to any possible negotiated agreement — such as an agreement that excludes funding for wall construction — the smart negotiator stops negotiating. President Trump should stop negotiating.
Instead, President Trump should begin constructing a wall on the southern border of the United States. He can do so using resources that have already been appropriated to the executive branch of government.
There are two bases for doing this. The first is that the president can use powers already granted to him by Congress. Under the National Emergencies Act, the president can declare a national emergency regarding the situation at the southern border, then allocate funds toward wall construction — and nobody can sue him to stop it.
There are already 31 such active national emergencies, including a national emergency “Prohibiting Transactions with Significant Narcotics Traffickers” and a national emergency “Blocking Property of Persons Undermining Democratic Processes or Institutions in Zimbabwe.” There’s also a national emergency declared in September even while Congress was still deliberating whether to pass a new law on the same topic: “Imposing Certain Sanctions in the Event of Foreign Interference in a United States Election.” Securing American territorial sovereignty along the southern border would merely be national emergency number 32.
The second basis is that the president possesses independent constitutional authority to fulfill his oath as commander in chief of the military and as trustee of the executive power of the United States. Unlawful border crossings are per se violations of American sovereignty. Building a fortification along America’s territorial border is as traditional a use of military power as is the existence of a military itself. The president isn’t just permitted to do what he believes is necessary to fulfill his constitutional oath of office: he’s required to do it.
Once President Trump has unilaterally exercised his rightful authority to build the wall, he will have removed a $5.7 billion obstacle in his negotiation with Congress. This should end the impasse between Congress and the president. Both sides would claim a face-saving way to end the shutdown, with each side scapegoating the other to their respective constituents while the federal government resumes full operation. It’s win-win all around.
Lew Olowski is an attorney and formerly a clerk to Radovan Karadzic, president of the Bosnian Serb Republic, at the United Nations International Criminal Tribunal for the former Yugoslavia. Lew served under Peter Robinson, who is among the world’s premiere international criminal trial lawyers litigating war crimes, genocide, and crimes against humanity. He is a graduate of Georgetown Law School.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.
