MarketWatch First Take: Congressional Republicans have a role model in their game of chicken over emergency powers

As the impasse over the government heads to record-setting levels, there’s a game of chicken going on over the prospect of President Donald Trump using emergency powers to fund border-wall construction on the southern border.

Neither side really wants Trump to use the emergency powers, for the Pandora’s box that would open for the executive branch usurping the legislative branch.

Trump himself labelled the prospect of using emergency power as “probably” before quickly upgrading to “maybe definitely”

Trump Today: President threatens to declare national emergency without border ‘win’

Can you imagine a President Alexandria Ocasio-Cortez using emergency powers to fight climate change? Or fund a jobs guarantee program? Or single-payer health care?

Republicans shudder at the thought. But they also don’t want to give in to House Speaker Nancy Pelosi’s demands to re-open the government without any authorization for further border-wall construction.

But there is a precedent, if a rather cynical one.

Lame-duck assemblies in Wisconsin, Michigan and North Carolina each launched post-election sessions last year to strip incoming Democrats of power.

There’s nothing to say a Republican-controlled Congress couldn’t do so at a federal level as well, though they would need to re-take the House first.

In practice, the courts would intervene if Trump invoked such emergency powers. There would probably be an immediate injunction followed by a path, possibly torturous, to the U.S. Supreme Court.

So the prospect of the judicial branch stepping in may also be relieving some Republican fears.

At a press conference, Pelosi refused to say how she and House Democrats would react to Trump using emergency powers.

“I think he’s going to have to answer to his own party on usurping that much power,” she said.

But so far, Trump’s party has been loathe to put any impediments in his way. They may just be waiting for his successor.

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