Trump is widely portrayed as having suffered a devastating loss to Nancy Pelosi by agreeing to a continuing resolution without additional funding for a border wall in some form.

And certainly, Pelosi is crowing about her victory. She’s also emboldened, accusing Trump of being subjected to blackmail by Putin. (Exact quote: “What does Putin have on @realDonaldTrump, politically, personally or financially?”).

Trump’s strategic error was making a government shutdown, even if in reality it was more of a slowdown of a portion of government, the mechanism to extract concessions from Democrats. If that was his goal, and not just a long-term ploy, Trump was destined to lose.

Republicans cannot win government shutdown fights because no matter who caused it or who is unreasonable, the media blames Republicans. As satisfying and justified as a partial government shrinkage and slowdown may be, it’s a losing battle.

So a government shutdown never was going to get Trump a wall from Democrats, who are never going to give Trump ANY wall. Or fence. Or steel barrier. For at least two reasons.

First, a wall would work. That is a real problem for those who favor either completely open borders or the current status quo of mass illegal cross-border migration. A wall wouldn’t be a cure all, but the arguments against it are mostly strawmen. It wouldn’t stop 100% of those attempting to enter illegally through the Mexican border. Fine, but it would stop most, and would allow the border patrol to focus on fewer areas. It also would serve as a deterrent. Another argument is that a border wall also would not stop visa overstays. Duh. It’s a border wall meant to keep out people who don’t have even a visa from illegally crossing the border. Let’s beef up tracking people who overstay their visas AND build a wall.

Second, and most important politically for Democrats and Republican NeverTrumpers, they see the failure of Trump to build the wall as a way to break Trump politically. It was a core promise. I think most Trump supporters understand that he has been undercut on the issue not only by Democrats but also by Republicans, but that won’t prevent the failure from being used as a wedge issue.

So where are we heading? The lack of border wall funding will be a continuing oozing loss for Trump, unless he does something drastic. That drastic action would be a declaration of a National Emergency to build the wall. It may be that Trump has gone through the hopeless task of trying to convince Democrats and the futile slowing-down of government, to set the stage for drastic action.

There are currently 31 active National Emergencies, and 58 national emergencies have been declared since the National Emergencies Act of 1976 was signed into law by President Gerald Ford.

Most of the National Emergencies don’t sound like “national emergencies” in any real sense (see links above). They sound more like serious situations where the president uses the powers given him by statute and the Constitution to address national security problems.

Trump’s authority would come not only from the National Emergencies Act, but also his power to control who may enter the U.S. and to protect the nation, as spelled out in the Supreme Court’s decision in the travel order case:

For more than a century, this Court has recognized that the admission and exclusion of foreign nationals is a “fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Fiallo v. Bell, 430 U. S. 787, 792 (1977); see Harisiades v. Shaughnessy, 342 U. S. 580, 588–589 (1952) (“[A]ny policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations [and] the war power.”). Because decisions in these matters may implicate “relations with foreign powers,” or involve “classifications defined in the light of changing political and economic circumstances,”such judgments “are frequently of a character more appropriate to either the Legislature or the Executive.” Mathews v. Diaz, 426 U. S. 67, 81 (1976).

Trump reportedly is preparing a National Emergency Order and has found $7 billion that legally could be spent under such an Order. Jess Bravin at The Wall Street Journal writes that Trump may have as much as $13 billion available for a wall under a National Emergencies Act order:

Currently, $13.3 billion in the Pentagon budget may be available, according to a congressional aide, enough to cover the $5 billion that Mr. Trump is seeking for the border wall. That would have to be diverted from projects such as military housing that Congress previously authorized.

Law Professor Steve Vladeck writes of Trump’s broad statutory authority:

As most Americans have been surprised to discover, the National Emergencies Act gave the president the power to declare a “national emergency” (and to thereby unlock hundreds of special statutory authorities that are only available in such cases), without defining what a “national emergency” actually is. In the process, Congress left the door wide open, at least legally, for presidents to use the act as a pretext for pursuing policy objectives that, whatever their merits, have little to do with meeting and responding to a genuine emergency….

The tragic irony of the National Emergencies Act is that, when it was enacted, it was meant to constrain presidential emergency power, not expand it. Congress put a one-year time limit on all national emergencies (while allowing them to be renewed solely by presidential proclamation), and it created a fast-track procedure whereby a simple majority of the House and the Senate could quickly vote to terminate any existing national emergency — even if the president disagreed.

Congress did not try to define what would count as a national emergency, concluding, quite correctly, that it would be impossible to anticipate all of the myriad episodes, attacks, disasters and other crises that might validly trigger these special, standby authorities. Instead, Congress assumed that the statute’s procedural checks (and political safeguards) would be sufficient both formally and practically to deter future presidents from abusing the powers that came with an emergency declaration.

It seems pretty clear, even from left-leaning legal commentary, that Trump would have the statutory authority to declare the border crisis to be a National Emergency, and assuming he could find funds under the ancillary statutory powers, to spend the money even if there is no new congressional spending authorization. I haven’t seen any analysis of constitutional questions, but if the President is spending funds already authorized by Congress, I’m not seeing the likelihood of a successful constitutional challenge.

One argument I’m seeing a lot of from Republicans is that by using the National Emergencies Act for spending, Trump may be enabling a future Democrat president to do the same for climate change or single-payer. Such an argument demonstrates how differently different groups within the GOP see the illegal immigration issue: To establishment types, it’s just another issue; to Trump supporters and many others, it’s an existential crisis over whether we have a country. For the former, it’s a time to be cautious fearing future abuse, for the latter it’s now or never because the current trajectory is disastrous, a Flight 93 political issue. I’m with the latter.

And no, this is not what Obama did with DACA and immigration. Obama unilaterally initiated a program in violation of the substance of federal immigration laws. There are laws barring people from being in the country illegally, there is no law barring a president from building a border wall.

Politically, Trump has no choice.

The people urging Trump to give up on wall funding are the same people who urged Trump to abandon Brett Kavanaugh when the smear campaign hit. Trump stuck with Kavanaugh and it helped salvage the Senate in a Democrat year. So too with building the wall and 2020. The way to lose is to demoralize your supporters and to embolden your opponents.

In mid-February, after Nancy Pelosi and Democrats again refuse to fund the wall, Trump must declare a national emergency under the National Emergencies Act, and spend whatever funds he can find under the statute to build the wall.

If Trump can find the $5.7 billion he wanted from Congress, he can declare victory. If he finds much more than his initial $5.7 billion request, he should do it and thank Nancy Pelosi for forcing him to find all that extra money for even more wall mileage.

He who laughs last, laughs best.

 

 
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