When President Donald J. Trump publishes his declaration of a national emergency requiring the construction of a wall on our southern border, that document will bear the formal signs of normal governance. The order will recite findings or at least assertions of fact. It will cite statutes—the act that authorizes its issuance and the statutes the president is triggering by signing his declaration. The same will be true of the complaints and legal briefs inevitably to be filed in its wake. There will be arguments familiar to administrative lawyers about standing, ripeness, reviewability, and statutory interpretation.
But hovering over all the familiar legal forms and practices is the depressing reality that Trump, as always, is endeavoring to hollow out the constitutional system of checks and balances. There is no national emergency at the border other than the tragedies of his creation. Gangs, sex traffickers, and drug smugglers are not invading the United States. His “crisis” is that Congress has refused to fund a campaign fantasy he promised that Mexico would pay for, and the smell of political defeat is more than he can bear.
Trump’s fecklessness is most obvious when you realize that if his declaration could produce the lawful construction of his promised wall, the partial government shutdown—and the pain imposed both on the economy in general and on thousands of American families specifically—was utterly pointless. Even odder is the fact that one of the statutory authorities Trump is expected to set in motion is the Defense Department’s authority to provide assistance to counter drug trafficking and organized crime. That authority, however, is within the department’s regular quiver of statutory powers. If legally available to build the wall, it is no more or less available than it was before the government shutdown or before Trump’s declaration. [Continue reading…]