It’s the best of times and the worst of times judging from President Donald Trump’s tweets about the ongoing government shutdown. “No Cave!” he vows in a tweet at 6:48 AM Tuesday morning, declaring the wall is desperately needed for border security, as well as to combat the drug problem. Yet on Monday morning, Trump had appeared to stick to slamming Democrats and trusting in political pressure. “#2020TAKEBACKTHEHOUSE” he concluded. Obvious problem: the GOP didn’t do anything when it did control the House only a year ago. Even without the House, however, there are actions the President can take—if he has the will.
Trusting in political pressure is likely to be a failing strategy. Democrats preparing to run for the White House in 2020 don’t want any compromise with Trump, and the increasingly extreme party has now defined the wall itself as immoral, in Speaker Nancy Pelosi’s phrase. [Trump slams Pelosi over comment about ‘immoral’ wall, by Bob Fredericks, New York Post, January 21, 2019] Polls also seem to show most people also blame Trump for the shutdown; not surprising since he initially volunteered to take the blame. [CNN Poll: Trump bears most blame for shutdown, by Jennifer Agiesta, CNN, January 14, 2019] The media bias against the president and the sob stories about federal workers suggest it will be difficult for the Republicans to gain an advantage the longer this goes on.
However, this does not mean that President Trump does not have at least some political room in which to maneuver. His compromise offer of extending DACA protections in exchange for wall funding was rejected out-of-hand by Democrats, making them look petty to moderate Republicans who otherwise oppose President Trump. The offer may have been intended to fail. Even new Utah senator Mitt Romney, praised the president for working in good faith. The move likely strengthened President Trump’s hold on his party.
A Rasmussen poll also found a majority of likely voters want tight controls over who enters the United States and do not think it is immoral. [Voters want strong borders, say wall is not ‘immoral,’ Rasmussen, January 14, 2019] So Trump has the people with him on the core issue. Unfortunately, a slight majority also oppose Trump declaring a national emergency to build the wall, which commentators like Pat Buchanan have urged him to do.
This doesn’t mean declaring an emergency should be ruled out, as it is certainly warranted. But the President does have other options. As has been repeatedly stated, broaching the subject of a remittance tax would do a great deal to break the logjam, as it would keep the president’s promise to have Mexico (and other Latin American countries) pay for the wall.
Another possibility is Senator Ted Cruz’s proposed “El Chapo” act. It would also designate all assets seized from alleged drug kingpin Joaquin “El Chapo” Guzman to pay for construction of the border wall. [Ted Cruz explains how he’s going to make El Chapo pay for the border wall, by Benny Johnson, Daily Caller, September 12, 2019]
It is completely unclear why the president will not mention either of these two ideas himself.
Trump’s own 2016 campaign website still features several ideas on how Mexico can be induced to “contribute the funds needed… to pay for the wall”. [Pay For The Wall, DonaldJTrump] These include: banning remittances outright via financial regulation until other countries contribute to wall construction; increasing visa fees; cancelling visas.
The campaign also promised “trade tariffs, or enforcement of existing trade rules,” and President Trump is currently claiming the new trade deal with Mexico means it is “indirectly” paying for the wall. Yet the more direct methods are not being used--or even mentioned.
Of course, while it would be great if Mexico would pay for the wall, it’s not essential. It’s more important that it is built. One Republican members of Congress recently cited a federal law to show how President Trump could unilaterally build the wall. Freedom Caucus Chair and North Carolina Republican Mark Meadows said 10 USC 274/284 “would allow for fence construction without federal emergency.”
Though the law doesn’t mention a “wall” specifically, it does mention “construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States,” to be built through the Defense Department. [Mark Meadows’ solution to the border crisis and shutdown stalemate is almost perfect, by JD Rucker, NOQ Report, January 20, 2019] The “steel slats” Trump supposedly favors would count as a fence.
Trump is likely to know of this suggestion because Meadows reportedly has great influence with the president, even supposedly persuading him to trigger the shutdown. [Mark Meadows, Trump whisperer, by Gabby Orr, Politico, January 20, 2019] Meadows is purportedly giving the President additional options, including recouping money from “improper payments” and increasing the fees charged to Mexicans when they cross the border.
[A]uthorize any department or agency of the Government which exercises functions in connection with the national defense… to enter into contracts or into amendments or modifications of contracts heretofore or hereafter made and to make advance payments thereon, without regard to other provisions of law relating to the making, performance, amendment or modification of contracts, whenever he deems that such action would facilitate the national defense.
In other words, President Trump could hire contractors to start building the wall in the interests of national defense, without regard to Congress, under his already existing authority.
Amazingly, President Obama used this law to indemnify USAID contractors from losses resulting from the Ebola epidemic. [Presidential Memorandum—Authorizing the Exercise of Authority Under Public Law 85-804, Obama White House Archives, November 13, 2014]
The use of USC 274/284 and/or Public Law 85-804 would likely lead to court challenges. Given how biased the lower courts have been against the president, predicting what would happen is difficult. The actual letter of the law no longer seems to matter. One can imagine some Democrat-appointed federal court judge suddenly decreeing that a border wall has nothing to do with national defense.
However, a border wall will do more to protect America than the ongoing war in Afghanistan. For that reason, President Trump could simply use his inherent authority as Commander-in-Chief and simply order the military to build the wall as part of his job of protecting the country. (Call it the Ann Coulter doctrine.) [Ann Coulter: Trump doesn’t need Congress to build the wall, Fox News, November 17, 2019]
Let the courts try to stop him—and let the Administration have that fight, if only restrain the out-of-control kritarchy.
Even if court challenges don’t go the way President Trump would like, it would allow him to start establishing literal “facts on the ground” in the form of new construction while the issue works its way through the courts. As Robert Moses is quoted as saying in Robert Caro’s The Power Broker, “Once you sink that first stake, they’ll never make you pull it up.” Furthermore, President Trump would likely win at the Supreme Court, as he has with other controversial policy initiatives, notably the travel ban and banning transgenders from the military. [Supreme Court Upholds Trump Restrictions on Transgender Military Service, by Ken Bredemeier, Voice Of America, January 22, 2019]
Speaking of the travel ban, the Trump Administration has powers it has not yet used.
Instead, Trump keeps going hat-in-hand to a Democratic Party that has no interest in recognizing his authority, let alone compromising with him. He is dealing from weakness, and the longer this goes on, the weaker he may get.
Thanks to the Left’s complete control of the MSM, no matter how extreme or unreasonable Democrats are, President Trump will be held at fault, no matter how eager he is for compromise. But even without declaring a “national emergency,” there are weapons he can use to defend the country.
He should act—and dare the Democrats to try and stop him.
James Kirkpatrick [Email him] is a Beltway veteran and a refugee from Conservatism Inc.