America’s Best Hope For A Border Wall In 2019
In 2016, Americans finally showed that they were fed up with the way things were being run in Washington. President Trump got elected because he promised to do what no other previous administration has managed to do: fix the notoriously leaky US borders. There were other key promises as well, but his stance towards illegal immigration was what clinched the deal for many conservative voters.
Many of those campaign promises have become reality in the first two years of the Trump presidency: he has delivered on tax reform and made a positive impact on the economy. Obamacare still stands but rendered largely ineffectual by decisive executive action by the president. Our troops are coming home as part of the “America First” foreign policy.
That leaves us with illegal immigration as the one area where Trump needs to deliver. His tough immigration policy and ICE crackdowns have made a difference, but we need more. Caravans of illegal immigrants and criminals are snaking their way across South and Central America to the US borders, their numbers swelling with each passing day.
A wall was promised to the American people and it is high time the President did something about it. With the Congress bogged down by partisan politics, it is up to Trump to make a difference. At the moment, declaring an emergency might be his, and America’s only hope.
The Congress – A Hopeless Quagmire Of Partisan Politics
The writing was on the wall for Trump as soon as the 2018 midterm results came out. After nearly a decade, the Republican dominance of the Congress was finally broken. In a democracy, that is bound to happen. But it is indeed a tragedy for Trump and the nation that this had to occur at this critical juncture.
Even more reprehensible is the attitude of the Democrats in the House and Senate. They are hellbent on blocking everything from the White House, no matter the dire consequences for the American public. With the House in Democrat’s hands and the Senate firmly Republican, Trump has no hope of getting anything meaningful done through the legislative branch.
The situation is so hopelessly partisan, we now have a government shutdown well into its third week, with no end in sight. The Democrats are stuck in a lose-lose position: if they continue to block Trump at all costs, they risk alienating the public. But if they concede, it will be a massive victory for Trump.
Even worse, it will be perceived as a weakness that the President will know he can bank upon in the future. So there is no way in a million years that Trump will be able to secure the funds for his wall from the Congress. In this scenario, his hand is well and truly forced: he will have to take drastic executive action.
When his latest attempt at a graceful compromise was scuppered by the Dems, the President warned that he was seriously considering the use of Emergency to get the wall built. Given the critical state of affairs, it is fast becoming the only viable option out there.
National Emergency – What It Means
There is no explicit provision for an emergency in the US Constitution. It was added later by the Congress and backed by the courts, especially in times like the Civil War. Numerous Presidents have used emergency powers to get things done in the past, especially during times of war.
Declaration of a National Emergency is a discretionary power at the disposal of a US President. The beauty of this system is that Trump does not have to seek the permission of the Congress or the Supreme Court to activate it.
And emergency powers of the President and vast and fearsome indeed. He can shut down communications, arrest people, freeze accounts, declare martial law, and of course, use US troops and their military assets and resources. History is full of instances where Presidents used emergency powers.
Lincoln suspended habeas corpus during the Civil War. Franklin D. Roosevelt interned Japanese Americans during World War II. George W. Bush used emergency powers extensively after the September 11 attacks. In fact, right now in the US, there are at least 30 emergencies in effect, many of them declared by Bush and Obama in the last two decades.
Which Emergency Would Trump Use?
As already noted, provisions for different types of emergencies are spread out across hundreds of different laws passed by Congress. For building a border wall, Trump can take up the Immigration and Nationality Act of 1952. It has a provision for the President to declare an “immigration emergency.”
Several factors are required for this to be legally possible:
- A massive influx of illegal aliens in underway
- The influx is overwhelming existing agencies like Border Patrol
- The influx is expected to grow
- It can raise crime rates and create social unrest/law & order issues in the US
Just a cursory look at these benchmarks would suggest that the current situation at the border does qualify for the declaration of an immigration emergency by the President.
There is, unfortunately, a catch in this whole design: the law only has provisions for securing $35 million or thereabouts to fund border security activities under this emergency. That is far, far short of the $5 billion Trump needs for his robust wall.
Trump does have the option to turn to his beloved armed forces to get this project started. Military spending laws also include provisions regarding national emergencies declared by a President. In the event of an emergency, the Secretary of Defence can order construction projects vital for the defense of the homeland.
This order does not require any authorization from Congress. Any cash that has been set aside for other military projects can also be repurposed for the wall. Granted, he may not be able to secure the whole $5 billion this way, but at least we will be able to get the construction started.
Risk Of Failure, And Other Complications
In the grand scheme of checks and balances in the US system, any opposition to this power move from the President has to come from the Congress, or through lawsuits in the Courts. In most of the emergencies declared so far, both the Congress and judiciary have played a largely supportive role.
But there are two major exceptions to this, and the Democrats will be quick to try and weaponize both to their advantage. In 1952, The US Supreme Court blocked President Truman’s attempt to nationalize steel mills during the Korean War. In the aftermath of Watergate, Congress passed the National Emergencies Act of 1976 to limit the powers of the President.
The Congress does have the power to remove the state of emergency, but for that to happen, Senate Republicans will have to vote against their own President. We have had that happen in the recent past, especially in the AHCA debacle, so it is a very valid (albeit remote) threat indeed.
In all possibility, the real challenge to the declaration of an emergency will come in the courts. Ultimately, the cases will come up before the Supreme Court, which is currently leaning towards the right. Here, the recent Trump nominees to the Court could make things easier for the President, although nothing can be considered a slam dunk at this point.
Building the entire wall is too big a project to be finished in the near future. Funding concerns and constitutional challenges aside, there are complications related to land acquisition as well. Cases related to the border fencing erected during the Bush era are still making their way through the legal system. In the case of a massive concrete (or steel) wall, similar challenges are sure to arise from landowners close to the border.
Build It Mr. President, At Any Cost
The biased media is vastly exaggerating the negatives of pursuing a path towards an immigration emergency. Ideally, one should be looking at legislative measures to get these things done. But this is an extraordinary situation, where half the Congress is stubbornly refusing to endorse a vital plan to secure our borders.
So the measures adopted must match the situation at hand. With the Senate still firmly in Republican hands, and a Supreme Court that is tilting to the right, Trump has enough cards in his deck to potentially come out victorious at the end. What the American voters are seeking is some concrete action from the President they elected, on the promises he made to them in 2016. Starting the construction alone would represent a significant victory for them and Trump personally.
It would go a long way in securing his reelection bid in 2020. Once that is secured, he can further cement the reforms he has initiated in immigration and hopefully, further secure our borders against illegal aliens once and for all.