After President Donald Trump’s surprise announcement of a temporary end to the government shutdown, the legacy media was quick to declare it a massive loss for Trump. However, the president may be in a far better negotiating position than most people believe. Trump has implied that he is ready and willing to announce a national emergency to get the wall funded if no progress is made over the next three weeks, but would such a move prove successful, and what other options are there?
In addition to the nuclear option of declaring a national emergency, the nonpartisan Congressional Research Service (CRS) has released a document that outlines other intriguing paths to funding a border barrier.
Will an Emergency Work?
The paper starts its discussion by stating that “because Article II of the Constitution contains no provision granting the Executive general emergency powers, the President generally must rely upon authority conferred by Congress to act beyond his ordinary Article II authorities.”
That’s bad news for Trump. Although Congress has given presidents of the past a reasonable amount of leeway when it comes to governing during an emergency, the regulation has fluctuated over the years, according to the CRS report. The lack of explicit powers for the president to grant his or her office additional powers in a national emergency situation means that a hostile House will attempt to use any means to stop Trump.
Thus, he does not want to go down this road unless he absolutely must. He will surely be branded as a dictator by an unfriendly press, and in the end, his plan may be stopped in the courts.
The paper also states that “several other statutes may provide the DOD [Department of Defense] with some authority to construct barriers along the border.” One of those statutes, 10 U.S.C. § 2803, allows for building a border wall as a military construction, without declaring a national emergency. However, this too can be challenged in court by disputing whether a border wall is military in nature.
Perhaps most promising for Trump is 10 U.S.C. § 284, which states that the Secretary of Defense “may provide support for the counterdrug activities or activities to counter transnational organized crime.” The provision allows for building barriers, but seems to be legally restricted to “drug smuggling corridors.” Thus, again Democrats will do anything within their legal power to challenge such an executive order in the courts, and it could greatly limit where a wall could be constructed.
Other Aces up the Sleeve?
In addition to these statutory options, Trump has a few remaining political opportunities. Most major Democrats have intimated that they care about border security and want to fund it to some degree, and part of the deal reached to achieve the three-week government truce involves creating a bipartisan, bicameral committee that will negotiate an agreement on border security as part of a new spending bill for the Homeland Security Department. If the committee comes back with a recommendation for a physical barrier in many places along the border, it will be politically difficult for the Democrats to reject any form of border barrier out of hand.
There does not seem to be a single “trump” card that the president can play to get the Wall built, but he may hold a stack of cards that in sum is strong enough to secure the border, despite vigorous opposition by the Democrats.