APTOPIX Government Shutdown

The Capitol is seen at dawn on the 21st day of a partial government shutdown as an impasse continues between President Donald Trump and Democrats over funding his promised wall on the U.S.-Mexico border, in Washington, Friday, Jan. 11, 2019. (AP Photo/J. Scott Applewhite)

The government’s damaging partial shutdown has extended into record territory, causing some 800,000 government employees to go without a paycheck on Friday. It is time to settle the dispute that caused the shutdown and return the government to its regular business of carrying out the nation’s laws by turning to the courts.

It would be better if both sides in the dispute could yield and find a compromise. So far neither one has budged. As Sen. Susan Collins, R-Maine, who took part in unsuccessful Senate talks on a compromise, said Thursday, “It’s very difficult when we’re dealing with people who do not want to budge at all with their positions, and that’s the president and Speaker (Nancy) Pelosi.”

Both are playing to their political bases. Speaker Pelosi, D-Calif., has called President Donald Trump’s proposal to build a barrier on the southern border “immoral,” even though she supported a compromise bill in 2013 that included 700 miles of border fencing. For his part, Mr. Trump is trying to carry out a campaign promise for a massive wall between the United States and Mexico to help stop illegal immigration.

Behind the political posturing, the facts are pretty mundane. President Trump seeks $5.7 billion — a relatively small request in a $4 trillion federal budget — to begin upgrading an existing 654 miles of barriers and extend the system to 1,000 miles, about half of the country’s 2,000-mile boundary. The purpose, he has said, is to improve the efficiency of the Border Patrol in stopping illegal crossings along the entire border. This is a practical objective and differs greatly from the symbolic “wall” of his campaign promises.

Speaker Pelosi controls the House of Representatives, which will not support any compromise spending package until she agrees to it. Mr. Trump also refuses to back down in his demand for funds for a wall although he has suggested he is willing to compromise on the amount.

President Trump used his visit to the Mexican border in Texas on Thursday to suggest another possible way out of the impasse if Democrats remain opposed to his wall.

As he was leaving for Texas the president said, “... [W]e’re either going to have a win, make a compromise — because I think a compromise is a win for everybody. Or I will declare a national emergency.”

Sen. Lindsey Graham, D-S.C., was another participant in the unsuccessful bipartisan Senate talks on ending the budget impasse. “They hate President Trump more than they want to fix problems — even problems they acknowledged to be real and serious in the past,” he stated Friday after meeting with the president. “Democrats will do everything in their power to defeat Trump in 2020. Mr. President, declare a national emergency now. Build a wall now.”

The emergency declaration would allow the president to use Defense Department budget authority for the wall construction. In a Jan. 9 USA Today op-ed, Homeland Security Secretary Kirstjen Nielsen wrote that her department does not have “full operational control” of the southern border and cannot provide assurance that her department knows who and what comes across. Ms. Nielsen also said a recent influx of women and children crossing the border illegally has overwhelmed the department’s ability to provide them with housing and medical care before they can be sent back to their own countries and created a “humanitarian crisis.” Mr. Trump is also asking for $7 billion to address the housing and staffing problems and improve the administration of immigration law.

But using a national emergency to solve the problem is legally risky, just as other options considered for bypassing Congress would be because they also would be subject to challenge as an unconstitutional circumvention of the congressional power of the purse.

For now, the president has backed away from an emergency declaration. While an agreement is preferable, if the issue lands in the courts Mr. Trump can say he had done all he could to carry out his promise to build a wall, and Ms. Pelosi can say she held out for more open borders. And government could get back to business.