There is little question that lawyers and law professors can argue on either side of this issue and make a convincing case. But here are some of the arguments Trump’s side will probably use if it comes down to that:

It’s likely that President Trump is looking at 10 U.S.C. § 284 for authority to build the wall. That allows the Department of Defense to support other agencies of the federal government to counter drug activity and transnational organized crime, using such means as “Construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.”

Another law, 10 U.S.C. § 2808, allows the president to declare a national emergency and direct the U.S. military to undertake military construction projects using appropriated funds for military construction, including family housing, that have not already been obligated.

Ackerman [a Yale law professor who wrote an op-ed in the NY Times saying that Trump lacks the authority] compares declaring an emergency to build a border wall to President Harry Truman’s attempt to nationalize the steel industry in 1952. That effort was struck down by the Supreme Court. This comparison is ridiculous, because that case involved the president seizing control of private property (i.e. privately owned steel mills).

In contrast, the government has already purchased much of the land needed for the border wall.

Much more at the link, including:

My research did not isolate a particular legal standard for “a national emergency,” so it’s possible Trump’s critics could challenge his action in the courts as insufficient on that basis. There’s plenty of violence taking place on both sides of the border in connection with drug smuggling that Trump could cite to invoke the same justification used by Clinton and Bush.

If Trump is wrong, Congress, as Ackerman noted, would have “the right to repudiate it immediately.” Thus, the question of whether the situation at the border is an emergency is probably more of a political issue for the first two branches of government than it is a legal issue for the third branch.

Whether or not it should be a legal issue for the third branch, it probably will be one, if Trump ends up deciding that declaring a national emergency is the way to go for building the wall.

Why is opposing the border wall the hill the Democrats have chosen to fight on? It’s clear why it’s so important to Trump—it’s the linchpin of his campaign promises and he feels he must deliver. For the Democrats, it’s really a reverse of that same principle. Their biggest goal is to remove Trump now or at the very least to prevent his re-election. In fact, they might be more comfortable with the second than the first, because removing a president means they can’t campaign against him in 2020, and they see anti-Trumpism as a big, big motivator for voting Democratic.

But their opposition to the wall is multiply-determined. They think it makes them look compassionate, which will appeal to their constituents, who can then bask in the glow of their own compassion when they vote for Democrats. In addition, the Party sees illegal immigrants as ultimately leading to more Democratic voters.

Who will win the wall funding standoff? Michael Walsh believes it will be Trump:

…[T]he furloughed public servants are merely suffering delayed paychecks thanks to the Democrats’ refusal to accept the results of the 2016 election, and while the public has not been as deliberately inconvenienced as it was during the dog-in-the-manger Obama shutdown, its effects are nevertheless being felt at such points of intersection as the national parks. Still, life has gone on otherwise pretty much as before — and the longer the shutdown rolls on, the more easily the way we were can be forgotten.

So the longer Donald Trump wrangles with his two superannuated cartoon antagonists, Nancy Pelosi and Chuck Schumer, the stronger the president’s position becomes. This despite the Democrat Media’s insistence that the shutdown is a terrible thing, costing the lives of (as usual) untold women, children, and minorities.

He has a point, which is that so far the shutdown has mostly been a non-event, hyped by the press of course, but not affecting most people at all. It will get more visible as time goes on, though, and the government workers start not receiving paychecks.

However, there is a certain “boy who cried wolf” perception that may be starting to operate, which is that people become somewhat bored with these recurrent shutdowns because they seem like old stories. We’ve passed this way too many times before, and the empty theater aspects of the process become more and more apparent.

How many people see the shutdown that way? It’s not clear, but until recently, polls indicate that more people blame Trump for the shutdown than blame the Democrats:

Nearly half of voters, 47 percent, say Trump is mostly to blame for the shutdown, the poll shows, while another 5 percent point the finger at congressional Republicans. But just a third, 33 percent, blame Democrats in Congress.

The article doesn’t have a link to the poll, so I wasn’t able to see how the questions were phrased, which tends to be highly important in interpreting the meaning of polls. It was also conducted prior to the president’s speech on Tuesday, which makes it even less meaningful than usual.

In a quick search, I was unable to find any polls taken after Tuesday. But it’s only over time that this story will play out, and Trump’s only just begun to fight.

[Neo is a writer with degrees in law and family therapy, who blogs at the new neo.]


Donations tax deductible
to the full extent allowed by law.