In the last hour, the Senate voted to approve the spending bill that provides some $1.375 billion for constructing 55 miles of “barrier” at the U.S. border, well short of the previous requests made by President Trump and Republicans in Congress. The bill also caps detention beds for ICE, which could result in mandated release of thousands of convicted criminal illegals being held in ICE facilities while they await immigration processing. The House will take up the Senate version for final approval Thursday evening.
(The president has authority to intervene and allow more “beds” for detention, but it’s unlikely that Trump would be able to do that without a challenge in court from activists and/or Democratic officials. As it stands, without Trump’s intervention, the spending bill would result in the release of more than 8,000 illegal aliens from ICE’s interior facilities, where 90% of the detainees have criminal convictions.)
Before calling the vote, Senate majority leader Mitch McConnell (R-KY) announced he had spoken with Trump, and the president planned to sign the spending measure and at the same time declare a national emergency in order to build the wall. The implication is obviously that Trump will use emergency authority to build the barrier requested by the Border Patrol, which includes more miles of barrier and a particular type of construction (i.e., the steel slatted fencing) that would present a meaningful obstacle to pedestrians as well as vehicles.
Nancy Pelosi is already on record today as considering a legal challenge to the national emergency declaration. I assume the reason she isn’t being more emphatic about that is that challenging the emergency declaration isn’t a legally promising approach. The president can declare emergencies; the courts are virtually certain to back him up on that, even if it takes an appeal or two to get past the political-agenda judges.
A legal challenge that might bog the “wall” down more effectively would probably involve something like environmental-impact or “disparate impact” claims (the latter being about impact on communities interpreted in demographic/victimization terms). That being said, these approaches are no slam-dunk either, as the president is in charge of deciding which of all these things is the priority when an emergency is at issue. It may take an even more serious funding standoff between Congress and the president to close off all executive avenues to building the “wall.”
Establishment Republicans are groaning over the prospect of a national emergency being declared. They seem to be mostly predicting that it will ruin 2020 for the GOP. They’re reading that wrong, in my opinion.
I am concerned myself about the use of national emergency powers, which could be genuinely misused for destructive purposes by a future president. So I agree with them on that point. But the crisis at the border is an emergency, not even so much because of the number of people who end up illegally inside the United States — a number we actually cannot pretend to know with certainty — but because the issue of borders is being focused and pressed right now by political activists, who are organizing the caravans. These caravans are intended to overwhelm our border security and make the U.S. government retreat from enforcing it. The organized caravans are a campaign against U.S. national sovereignty, and a defeat of U.S. sovereignty must not be the outcome.
I’ve never once chanted “Build the wall,” and if I had my druthers in a perfect world, we wouldn’t need one. But manifestly, we do need one, at least for now. Active enforcement isn’t being allowed to keep up with the illegal-entry problem — a perennial shortfall backed for decades by Democrats and some Republicans in Congress. Without an effective barrier system, we face only more years of illegal entry, and millions more migrants and U.S. politicians exploiting the holes in our immigration policies, as the policies play out in enforcement.
That serves the special interests of some in the U.S. (left-wing politicians, some businesses and industries) but it has also been creating — unconscionably — a whole subclass of people who are allowed to behave differently and who are treated differently under the law. The latter is intolerable. It will destroy the country if it continues unchecked.
Trump has done the right thing asking the Border Patrol what they would like to see as a wall, given their charter and tasks. There is every indication that he means to meet the requirements they have expressed. If anything, what I’m not a fan of at this juncture is Trump signing the bill that will mandate releasing thousands of convicted criminals into the U.S. population. But I think the GOP establishment misreads the situation, pretty much comprehensively, if it actually imagines recognizing the crisis at the border is a bad move for 2020.