Avoiding shutdown, declaring emergency


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FILE - In this Tuesday, Feb. 12, 2019, file photo, President Donald Trump speaks during a cabinet meeting at the White House in Washington. The Senate resoundingly approved a border security compromise Thursday that ignores most of President Donald Trump's demands for building a wall with Mexico but would prevent a new government shutdown. (AP Photo/Evan Vucci, File)

FILE - In this Tuesday, Feb. 12, 2019, file photo, President Donald Trump speaks during a cabinet meeting at the White House in Washington. The Senate resoundingly approved a border security compromise Thursday that ignores most of President Donald Trump's demands for building a wall with Mexico but would prevent a new government shutdown. (AP Photo/Evan Vucci, File)


FILE - In this Jan. 3, 2019, file photo, a woman takes a snapshot by the border fence between San Diego, Calif., and Tijuana, as seen from Mexico. The immigration spending Congressional leaders on Thursday, Feb. 14, released details of a compromise on border and immigration enforcement that gives President Donald Trump just a sliver of the money he wanted for his border wall with Mexico. (AP Photo/Daniel Ochoa de Olza, File)


House Minority Leader Kevin McCarthy, R-Calif., joins supporters of President Donald Trump and family members of Americans killed by undocumented immigrants as they gather to to promote their support for a border wall with Mexico, at the Capitol in Washington, Wednesday, Feb. 13, 2019. (AP Photo/J. Scott Applewhite)


Trump will sign border deal but will also declare emergency

By ALAN FRAM, CATHERINE LUCEY and ANDREW TAYLOR

Associated Press

Friday, February 15

WASHINGTON (AP) — Congress lopsidedly approved a border security compromise that would avert a second painful government shutdown.

But a new confrontation has been ignited — this time over President Donald Trump’s plan to bypass lawmakers and declare a national emergency to siphon billions of dollars from other federal coffers for his wall on the Mexican boundary.

Money in the bill for border barriers, about $1.4 billion, is far below the $5.7 billion Trump insisted he needed and would finance just a quarter of the 200-plus miles (322 kilometers) he wanted. The White House said he’d sign the legislation but act unilaterally to get more, prompting condemnations from Democrats and threats of lawsuits from states and others who might lose federal money or said Trump was abusing his authority.

The uproar over Trump’s next move cast an uncertain shadow over what had been a rare display of bipartisanship to address the grinding battle between the White House and lawmakers over border security.

The Senate passed the legislation 83-16 Thursday, with both parties solidly aboard. The House followed with a 300-128 tally, with Trump’s signature planned Friday. Trump will speak Friday morning in the Rose Garden about border security, the White House said.

Trump is expected to announce that he will be spending roughly $8 billion on border barriers — combining the money approved by Congress with funding he plans to re-purpose through executive actions, including a national emergency, said a White House official who was not authorized to speak publicly. The money is expected to come from funds targeted for military construction and counter-drug efforts.

House Democrats overwhelmingly backed the legislation, with only 19 — most of whom were Hispanic — opposed. Just over half of Republicans voted “no.”

Should Trump change his mind, both chambers’ margins were above the two-thirds majorities needed to override presidential vetoes. Lawmakers, however, sometimes rally behind presidents of the same party in such battles.

Lawmakers exuded relief that the agreement had averted a fresh closure of federal agencies just three weeks after a record-setting 35-day partial shutdown that drew an unambiguous thumbs-down from the public. But in announcing that Trump would sign the accord, White House Press Secretary Sarah Sanders also said he’d take “other executive action, including a national emergency,”

In an unusual joint statement, House Speaker Nancy Pelosi, D-Calif., and Senate Minority Leader Chuck Schumer, D-N.Y., said such a declaration would be “a lawless act, a gross abuse of the power of the presidency and a desperate attempt to distract” from Trump’s failure to force Mexico to pay for the wall, as he’s promised for years.

“Congress will defend our constitutional authorities,” they said. They declined to say whether that meant lawsuits or votes on resolutions to prevent Trump from unilaterally shifting money to wall-building, with aides saying they’d wait to see what he does.

Democratic state attorneys general said they’d consider legal action to block Trump. Puerto Rico Gov. Ricardo Rossello told the president on Twitter “we’ll see you in court” if he makes the declaration.

Despite widespread opposition in Congress to proclaiming an emergency, including by some Republicans, Trump is under pressure to act unilaterally to soothe his conservative base and avoid looking like he’s lost his wall battle.

The abrupt announcement of Trump’s plans came late in an afternoon of rumblings that the volatile president — who’d strongly hinted he’d sign the agreement but wasn’t definitive — was shifting toward rejecting it. That would have infused fresh chaos into a fight both parties are desperate to leave behind, a thought that drove some lawmakers to ask heavenly help.

“Let’s all pray that the president will have wisdom to sign the bill so the government doesn’t shut down,” Sen. Charles Grassley, R-Iowa, said as Thursday’s Senate session opened.

Moments before Sanders spoke at the White House, Senate Majority Leader Mitch McConnell, R-Ky., took to the Senate floor to announce Trump’s decisions to sign the bill and declare an emergency.

Sen. John Cornyn, R-Texas, told reporters there were two hours of phone calls between McConnell and the White House before there were assurances that Trump would sign.

McConnell argued that the bill delivered victories for Trump over Pelosi. These included overcoming her pledge to not fund the wall at all and rejecting a Democratic proposal for numerical limits on detaining some immigrants, said a Republican speaking on condition of anonymity to describe private conversations.

In a surprising development, McConnell said he would support Trump’s emergency declaration, a turnabout for the Kentucky Republican, who like many lawmakers had opposed such action.

Democrats say there is no border crisis and Trump would be using a declaration simply to sidestep Congress. Some Republicans warn that future Democratic presidents could use his precedent to force spending on their own priorities, like gun control. GOP critics included Maine Sen. Susan Collins, who said emergency declarations are for “major natural disasters or catastrophic events” and said its use would be of “dubious constitutionality.”

White House staff and congressional Republicans have said that besides an emergency, Trump might assert other authorities that could conceivably put him within reach of billions of dollars. The money could come from funds targeted for military construction, disaster relief and counter-drug efforts.

Congressional aides say there is $21 billion for military construction that Trump could use if he declares a national emergency. By law, the money must be used to support U.S. armed forces, they say. The Defense Department declined to provide details on available money.

With many of the Democrats’ liberal base voters adamantly against Trump’s aggressive attempts to curb immigration, four declared presidential hopefuls opposed the bill in the Senate: Cory Booker of New Jersey, New York’s Kirsten Gillibrand, Elizabeth Warren of Massachusetts and Kamala Harris of California. Amy Klobuchar of Minnesota voted for it, as did Vermont independent Bernie Sanders, who is expected to join the field soon.

Notably, the word “wall,” the heart of many a chant at Trump campaign events and his rallies as president, is absent from the compromise’s 1,768-page legislative and descriptive language. “Barriers” and “fencing” are the nouns of choice, a victory for Democrats eager to deny Trump even a rhetorical victory.

The agreement, which took bargainers three weeks to strike, would also squeeze funding for Immigration and Customs Enforcement, or ICE, in an attempt to pressure the agency to detain fewer immigrants. To the dismay of Democrats, however, it would still leave an agency many of them consider abusive holding thousands more immigrants than last year.

The measure contains money for improved surveillance equipment, more customs agents and humanitarian aid for detained immigrants. The overall bill also provides $330 billion to finance dozens of federal programs for the rest of the year, one-fourth of federal agency budgets.

Trump sparked the last shutdown before Christmas after Democrats snubbed his $5.7 billion demand for the wall. The closure denied paychecks to 800,000 federal workers, hurt contractors and people reliant on government services and was loathed by the public.

With polls showing the public blamed him and GOP lawmakers, Trump folded on Jan. 25 without getting any of the wall funds. His capitulation was a political fiasco for Republicans and handed Pelosi a victory less than a month after Democrats took over the House and confronted Trump with a formidable rival for power.

Trump’s descriptions of the wall have fluctuated, at times saying it would cover 1,000 miles of the 2,000-mile boundary. Previous administrations constructed over 650 miles of barriers.

Associated Press Congressional Correspondent Lisa Mascaro and reporters Padmananda Rama, Lolita Baldor and Matthew Daly contributed.

Balderson Supports Bipartisan Funding Agreement to Strengthen Border Security and Avert Government Shutdown

WASHINGTON – Congressman Troy Balderson (R-OH) released the following statement after voting in favor of the bipartisan funding agreement that strengthens border security and averts another government shutdown:

“While I was frustrated by the way this legislation was rushed through, I put in the work today to make sure I’m fully aware of what it entails,” said Congressman Troy Balderson. “I fundamentally disagree with several provisions in this bill, but I cannot, in good conscience, vote to shut down the federal government, when the alternative is a genuine bipartisan compromise such as this one. This is not an ideal solution by any means, but it does its intended purpose—fund the government and provide funding to protect our country and curb the swelling humanitarian crisis at our southern border. Therefore, I support this compromise and am glad to see its bipartisan support in both chambers.”

Balderson recently introduced the End Government Shutdowns Act (H.R. 791), which would prevent future shutdowns by triggering continued levels of funding from the previous fiscal year rather than leaving the door open for future shutdowns.

The Conversation

If Trump declares a national emergency, could Congress or the courts reverse it?

January 12, 2019

Author: Chris Edelson, Assistant Professor of Government, American University School of Public Affairs

Disclosure statement: Chris Edelson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

Partners: American University School of Public Affairs provides funding as a member of The Conversation US.

If President Donald Trump declares a national emergency to fund some portion of a wall along the U.S.-Mexico border without congressional authorization, what would happen next?

Would the courts step in? What is Congress’ role?

As I explain in my book “Emergency Presidential Power,” presidents generally claim emergency power two ways: through inherent or implied authority under the U.S. Constitution or under statutory authority granted by Congress.

Relying on the Constitution as a basis for emergency power is controversial, and less likely to stand up to meaningful congressional or judicial review. The U.S. Constitution says nothing specific about presidential emergency power: Presidents can only claim such authority is implied or inherent.

The emergency powers the Constitution does describe are actually assigned to Congress. Congress has delegated some emergency powers to the president through statutes, including the National Emergencies Act. But Congress retains the power to reject a president’s declaration of a national emergency.

If President Trump does declare an emergency, the question is: Will Congress use the power available to it, or will it play the role of passive spectator?

Gaining congressional approval

Since presidents lack any specific constitutional emergency power, they often find it necessary to gain congressional authorization. For instance, at the start of the Civil War, with Congress out of session, President Abraham Lincoln suspended habeas corpus and took other unilateral actions. He later sought and gained retroactive approval from Congress for these actions.

This precedent of gaining congressional approval was put to the test nearly 100 years later. In 1952, President Harry Truman claimed emergency power to take control of steel factories during the Korean War in response to a labor strike. He invoked a “very great inherent power to meet great national emergencies.” Congress took no specific action to approve or disapprove, though a pre-existing statute on the books weighed against Truman.

President Harry Truman in his White House office in Washington Dec. 16, 1950 signs a proclamation of a state of national emergency, summoning the nation to marshal its strength against the threat of AP Photo/William J. Smith

When factory owners sued the administration, the Supreme Court, by a 6-3 vote, ruled against Truman in the famous Youngstown Sheet decision. Justice Robert H. Jackson’s concurring opinion in that case has been especially influential and is often cited by legal scholars and judges. He outlined a three-part test to be used as a starting point in determining when presidential action is constitutionally permissible.

Under Jackson’s test, presidents are on the strongest possible footing when acting with congressional approval. In this case, Jackson said, Truman’s position was weak since he was taking action that did not comply with the relevant legislative framework. In Jackson’s view, Truman’s reliance on inherent emergency power under the Constitution would dangerously concentrate power in the president’s hands, something the framers would not have wanted.

Congress’s role

Jackson’s opinion in Youngstown suggested that emergency power could be defined by Congress in statutes.

Congress took up that suggestion with the National Emergencies Act of 1976. Though the act was designed to set limits on presidential power to declare national emergencies of indefinite length, it has ended up providing a largely unregulated way for presidents to take unilateral action. Congress has failed to fulfill its responsibilities under the law.

The National Emergencies Act permits the president to declare a national emergency without congressional approval, triggering specific statutory powers that the president can use. For instance, presidents have used this law to impose economic sanctions against terrorists after 9/11 or regulate foreign ships in U.S. waters. Thirty-one emergency declarations are currently in effect under the statute.

Congress can vote at any time to terminate a state of emergency, and is required by the statute to meet every six months while an emergency is in effect to consider whether it should continue. However, it has never voted on an emergency declared by a president or held meetings as required by the statute.

Perhaps most importantly for Trump, the National Emergencies Act provides no criteria for deciding whether a national emergency exists. We know from history that presidents can contrive emergencies as a pretext for action.

For example, in 1846 President James Polk falsely claimed that Mexico had spilled American blood on U.S. soil as a pretext for gaining a declaration of war from Congress.

In 1942, President Franklin D. Roosevelt justified the decision to intern 110,000 Japanese-Americans without trial based on false claims that time was of the essence, and at least some Japanese-Americans were known to be disloyal.

Although both of these examples pre-date the 1976 Act, they serve as cautionary tales about the wisdom of accepting at face value a president’s claim that an emergency exists. However, because the law now in effect provides no specific standards to define the existence of an emergency, courts might be inclined to defer to presidential discretion. If President Trump declares a national emergency at the border, it is far from clear that courts would strike it down.

By contrast, it would be straightforward for Congress to reverse a declaration of national emergency. The National Emergencies Act gives legislators authority to reject a presidential declaration of national emergency through simple legislation that would require majorities in the House and Senate. President Trump would presumably veto such action. Legislators would have the opportunity to override a presidential veto with a two-thirds majority vote. That of course would be no easy task in the current Congress.

Because of the way the National Emergencies Act was drafted, Congress is better positioned to take action than the courts – assuming enough members are moved to act. If Congress does nothing, then the law could become a vehicle for presidential abuse, especially because the act’s language seems to grant the president broad discretion that could insulate an emergency declaration from legal challenge. If the president moves ahead with a controversial plan to declare a national emergency as a way to free up money for construction of a border wall, all eyes should be on Congress.

The Conversation

Striking teachers in Denver shut down performance bonuses – here’s how that will impact education

February 15, 2019

Author: Nathan Favero, Assistant Professor of Public Administration & Policy, American University School of Public Affairs

Disclosure statement: Nathan Favero does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

Partners: American University School of Public Affairs provides funding as a member of The Conversation US.

Editor’s note: Denver teachers reached a tentative deal on Feb. 14 that ended a three-day strike.

Besides raises of 7 to 11 percent, one of the concessions they won was the end of performance-based pay, which they said was unreliable and led to unacceptably low base pay.

Nathan Favero, an education policy expert at American University, answers three questions about the effectiveness of performance-based pay and how its elimination will impact education in Denver.

How did performance affect teachers’ pay?

While teachers’ base salaries were mostly determined by their education levels and teaching experience, in Denver public schools, teachers also got substantial bonuses based on a number of other factors, including performance.

The main performance-based bonus went to teachers in schools where students performed particularly well on standardized tests. If a school was designated as high-achieving, then all teachers in that school received the bonus that year. The size of bonuses for teachers working in recognized schools varied from year to year, but amounts have been as large as US $5,100 per teacher.

Under early versions of the district’s bonus pay system, teachers were also recognized individually for good performance. However, these individual performance bonuses were largely done away with in 2015. Teachers still received individual performance evaluations every year, but in most schools, these evaluations did not affect teacher pay, except when a teacher was found to be severely deficient.

Even after 2015, individual performance pay was still used in one set of schools. Every year, the district identified 30 “highest priority” schools. Teachers in these schools could receive bonuses based on individual performance evaluations. These evaluations rated teachers based on several data sources, including students’ standardized test scores, surveys filled out by students, achievement of student learning goals set by the teacher and classroom observations conducted by school leaders or peers.

How effective is pay-for-performance?

Research teams based at the University of Colorado at Denver and the University of Colorado at Boulder have concluded that the pay-for-performance system had few effects on students.

One analysis found that performance incentives caused a tiny increase in math scores, but even these small gains were offset by slight drops in reading and writing scores. Other analyses found no evidence of any effect on standardized test scores.

Despite lackluster results on standardized tests, Denver’s pay-for-performance system may have helped a bit when it comes to retaining teachers. One analysis estimates that the city retained up to 160 teachers per year who otherwise would have quit if it wasn’t for the performance pay system. Given the fact that the district had 3,700 teachers at the time of the study, this means about 4.3 percent of Denver’s teacher workforce was potentially retained because of the pay system. Another analysis indicates that the retained teachers were better-than-average teachers, which makes them particularly important to the district.

Across the nation, other school districts have had similar experiences with pay-for-performance. On average, teacher pay-for-performance systems seem to produce a small improvement for students, though not always.

The limited success of Denver’s performance pay system may be due in part to its complexity. Researchers found through surveys and interviews of teachers that many of them did not know exactly how bonuses could be earned or even had wrong information. Many teachers also felt that the bonus system was unfair and that the individual performance evaluation could sometimes be manipulated by, for example, setting easily achievable goals to be assessed with an administrator at the end of the year.

So what changes under the new contract?

Under the new labor deal, almost all pay-for-performance is eliminated. Instead of paying bonuses to teachers in schools with impressive standardized test scores, $750 bonuses will be paid to teachers in up to 10 schools selected by a committee for excellence in areas such as health education, counseling services and community engagement. The agreement specifically states that these awards cannot be based on teacher performance evaluation data or school report cards that contain standardized test scores.

The deal also eliminates bonuses tied to individual performance evaluations for teachers in high-priority schools. Extra pay for teachers in hard-to-staff schools will continue. However, all teachers working in these schools will receive the same bonus, regardless of their performance evaluation.

Teachers have asked for a pay system that is more predictable. The revised pay system should give them more certainty at the beginning of the year about how much they can expect to make. Students and administrators will have to hope that the district can continue to retain high-quality teachers despite the elimination of performance bonuses that may have helped persuade some of these teachers to stay in the district in the past.

FILE – In this Tuesday, Feb. 12, 2019, file photo, President Donald Trump speaks during a cabinet meeting at the White House in Washington. The Senate resoundingly approved a border security compromise Thursday that ignores most of President Donald Trump’s demands for building a wall with Mexico but would prevent a new government shutdown. (AP Photo/Evan Vucci, File)
https://www.sunburynews.com/wp-content/uploads/sites/48/2019/02/web1_122330149-a324aadca5a548d09a1d084ebe4dd298.jpgFILE – In this Tuesday, Feb. 12, 2019, file photo, President Donald Trump speaks during a cabinet meeting at the White House in Washington. The Senate resoundingly approved a border security compromise Thursday that ignores most of President Donald Trump’s demands for building a wall with Mexico but would prevent a new government shutdown. (AP Photo/Evan Vucci, File)

FILE – In this Jan. 3, 2019, file photo, a woman takes a snapshot by the border fence between San Diego, Calif., and Tijuana, as seen from Mexico. The immigration spending Congressional leaders on Thursday, Feb. 14, released details of a compromise on border and immigration enforcement that gives President Donald Trump just a sliver of the money he wanted for his border wall with Mexico. (AP Photo/Daniel Ochoa de Olza, File)
https://www.sunburynews.com/wp-content/uploads/sites/48/2019/02/web1_122330149-dbc6e58ab91247d5a23bd8d489282c40.jpgFILE – In this Jan. 3, 2019, file photo, a woman takes a snapshot by the border fence between San Diego, Calif., and Tijuana, as seen from Mexico. The immigration spending Congressional leaders on Thursday, Feb. 14, released details of a compromise on border and immigration enforcement that gives President Donald Trump just a sliver of the money he wanted for his border wall with Mexico. (AP Photo/Daniel Ochoa de Olza, File)

House Minority Leader Kevin McCarthy, R-Calif., joins supporters of President Donald Trump and family members of Americans killed by undocumented immigrants as they gather to to promote their support for a border wall with Mexico, at the Capitol in Washington, Wednesday, Feb. 13, 2019. (AP Photo/J. Scott Applewhite)
https://www.sunburynews.com/wp-content/uploads/sites/48/2019/02/web1_122330149-bc74ceab12b447b6aae5105d2b93d358.jpgHouse Minority Leader Kevin McCarthy, R-Calif., joins supporters of President Donald Trump and family members of Americans killed by undocumented immigrants as they gather to to promote their support for a border wall with Mexico, at the Capitol in Washington, Wednesday, Feb. 13, 2019. (AP Photo/J. Scott Applewhite)
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