There is a common strain of argument amongst those who would abuse and debase our constitutional system of government. They manufacture deceptive dreck in the knowledge that their loyal partisan friends will swallow anything to get what they want. Remember when Barack Obama repeatedly declared that he couldn’t bypass Congress and implement unilateral immigration reforms — including suspending deportations — but then did it anyway?
Oh, that’s fine, said the partisans. It’s just “prosecutorial discretion.” No, it wasn’t. He created entirely new programs — new government benefits — and not only did he do so without Congress, but he did so without even observing the formalities of the Administrative Procedure Act. His homeland-security secretaries simply wrote memos.
Now it looks like it might be Donald Trump’s turn, and once again partisans are tripping over themselves to disregard the law in service of their imperial president. He doesn’t need Congress, they say. The law gives him the authority to declare an emergency and build his wall anyway. But if that’s true, why is the government shut down? Why are we going through this ridiculous charade? Why didn’t he declare an emergency and build the wall months ago? Why didn’t he deal with this crisis the moment he walked into office?
The answer is simple. If you look at the plain language and clear intent of the relevant statutes, they do not permit Trump to defy Congress and build his wall. He knows it. Congress knows it. His own lawyers know it.
I wrote a long piece earlier this week analyzing the relevant statutes and judicial precedent, and I won’t rehash all of that here, but the bottom line is that even under the most generous statute, only during a “national emergency” that “may require” the use of the military may the president allocate funds for “authorized” construction projects that are “essential to the national defense.”
On every key step, the legal analysis fails. In 2019 do we face a “national emergency” within any fair reading of the intent of the National Emergencies Act? No. Following a more than decade-long buildup in border security, apprehensions at the border are less than one-quarter what they were at the height of the surge in illegal entry. In fact, on December 20 Trump tweeted that the “border is tight” and condemned “fake news” for its silence about that alleged fact.
The border was tight before Christmas, yet now there’s a national emergency. How does that make sense?
Moreover, as the legislative history makes clear, the fundamental purpose of the act was to restrain presidential power, not to enable a president to act without Congress simply because Congress won’t do what he wants.
Yes, presidents abuse the law anyway. And Congress refuses to stop them. And each past abuse is used to justify future abuses. We live under 28 separate states of emergency now, with one dating back to the Iranian hostage crisis. So what’s one more abuse in 2019?
Well, how about if the abuse requires you to gut the meaning of several statutes? For example, how about the assertion that the emergency on the border “may require” the use of the military? Don’t forget, in the United States, border security along a border with an allied nation is a civilian mission. It’s a mission managed by the civilian Department of Homeland Security. Border security has been enhanced in recent years by the addition of new civilian Border Patrol officers and the construction of civilian structures, not military fortifications.
Yes, Trump deployed troops to the border in the run-up to the midterms. But if deployment alone is proof of necessity, look for the day when a Democratic president sends troops to help build windmills. After all, at least in that case there’s an actual Pentagon document declaring climate change an “immediate risk” to national security.
But even if you can credibly argue that a national emergency exists, and that the emergency may actually require the use of military assets, how do Trump’s defenders argue that the construction of his wall is actually already “authorized”? Easy, they say. Congress passed the Secure Fence Act in 2006, and it authorizes the construction of fencing on defined sections southern border.
But wait. That project is almost entirely complete. The original act required specific fencing, but when DHS complained that different parts of the border required different kinds of barriers, Congress amended the act to merely require DHS to erect fencing, physical barriers, or “roads, lighting, cameras, and sensors” in specific areas along the Mexican border. By 2011, DHS declared that it had finished 649 out of the planned 652 miles of fences and other barriers. In other words, the construction project — as defined by the statute — was more than 99 percent complete.
So, is the argument that Trump can declare a national emergency to upgrade a completed fencing project? But where is the authority for the upgrade? In our system of government, Congress holds the power of the purse, and it authorizes new construction — even where old construction exists.
Some Trump defenders also point to 10 U.S.C. Section 284, an act that provides for limited Department of Defense support for counter-drug activities (in general, U.S. troops are barred from participating in domestic law enforcement). The act allows the Pentagon, upon the request of the appropriate public official, to support the “construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.” (Emphasis added.)
Critically, legal points of entry represent the primary drug-smuggling corridor into the United States. It would be curious indeed to deem “authorized” the construction of hundreds of miles of fence in the absence of proof that the specific construction site addresses a known drug corridor. Is the argument now that the entire border is a drug-smuggling corridor? Or that a president can simply declare that it is, and woe unto any court that dares second-guess his assertion?
Finally, the legal argument in support of the notion that constructing a border wall is “essential to the national defense” boils down primarily to the naked assertion that, well, courts won’t dare question the president. But words still have meaning. We are not in a state of declared war with Mexico. There is no invading army. Illegal-immigrant crime, as tragic as it is, isn’t an act of war. It would be strange indeed to argue that a border fence with an allied country is “essential to the national defense” when the border-security mission by statute isn’t even a military mission.
Can we be honest about these arguments? Vanishingly few people in good faith believe that any of the statutes above were intended to empower the construction of Trump’s promised new wall. It’s a strain to argue that they even encompass upgrades to existing walls. Not even the Trump administration believes they were intended to empower the president to build the wall. Has Trump previously sought appropriation from Congress as a mere matter of professional courtesy?
No, this is an attempted abuse of the constitutional order that is justified mainly by the existence of previous successful abuses of the constitutional order. Each abuse builds on the next; hypocrisy builds on hypocrisy. The only clear winner is the imperial presidency. The loser is our constitutional republic. And each Trump fan cheering his raw power grab will be a furious partisan when the next Democratic president builds on Trump’s abuse.
Congratulations, partisans. You claim you’re saving our country. In reality, you’re wrecking our constitution.