An Incomplete Compromise Border Deal

Will President Trump accept and fill in the gaps on his own?

The Democrats are not interested in genuine border security. They reject the idea of effective physical barriers. They want to limit the number of illegal aliens who can be detained, resulting in the release of dangerous criminals into our nation’s communities while these aliens wait years for court hearings on their asylum claims. The Democrats resist controlling the entry of would-be asylum seekers through only the official ports of entry. They call walls “immoral” and consider deportations to be inhumane. Thus, it is no surprise that the most the Democrats were willing to offer to reach a so-called bipartisan compromise on funding for border security turned out to be a paltry $1.375 billion to build 55 miles of new border barriers, with some restrictions attached.  The deal could also reportedly place some sort of limitations on the level of detention beds for ICE, although there is some confusion as to exactly how that would work.President Trump was understandably unimpressed, although he did not shut the door completely on ultimately going along with the deal to avoid another government shutdown. “I have to study it. I’m not happy about it. It’s not doing the trick,” Trump said during a cabinet meeting at the White House.

President Trump has several options short of saying “no deal,” assuming that he does not want to see another government shutdown. The president already intimated as much when he said, “I’m adding things to it. It’s all going to happen, where we’re going to build a beautiful, big, strong wall.”

President Trump could sign the government funding bills, including the border security compromise, while at the same time declaring a national emergency under which he would re-allocate unspent monies previously appropriated for other purposes to meet the national security and humanitarian crisis at the southern border. He can point to the approaching caravans from Central America as threatening to further exacerbate the crisis. The National Emergencies Act of 1976 grants the president broad authority to declare emergencies, which he could then leverage under a number of specific federal statutes to use monies already appropriated to address the emergency by building physical barriers. For example, 33 U.S. Code § 2293 allows for the termination or deferment of civil works projects and application of resources to projects deemed essential to national defense.

However, a national emergency declaration will invite immediate court challenges and a probable injunction, unless President Trump can beat the open border advocates to the courthouse and find a sympathetic judge to issue a declaratory judgment in his favor.

There are other potential avenues he could consider, which may outflank the Democrats and their open border allies without having to trigger another government shutdown or to declare a national emergency. Acting Chief of Staff Mick Mulvaney and other agency heads have been busy scouring the budget for available funds to build the wall without necessarily having to declare a national emergency.

For example, President Trump could agree to sign the government funding bills, including the border security compromise, and then at the signing ceremony announce that the balance of the $5.7 billion funding for more physical barriers that he had requested would come from monies he already has the authority to spend to combat transnational drug smuggling and other criminal enterprises such as human trafficking.

During a House Armed Services Committee hearing late last month, Under Secretary of Defense for Policy John Rood confirmed that the Defense Department already has the legal authority to construct fencing along the southern border with Mexico to help stop drug smuggling into the country or to counter transnational organized crime. He had in mind the authority granted by 10 United States Code § 284, which Mr. Rood said he did not believe required a declaration of national emergency to implement.

There is another intriguing possibility that could get Mexico to pay for the wall indirectly after all. Mexican drug kingpin Joaquin “El Chapo” Guzman was just convicted on all counts. Why not, as Senator Ted Cruz has suggested, use the estimated $14 billion being sought for seizure from El Chapo towards building the wall? “America’s justice system prevailed today in convicting Joaquín Guzmán Loera, aka El Chapo, on all 10 counts,” Senator Cruz tweeted shortly after Guzmán was convicted. “It’s time to pass my EL CHAPO Act. I urge my Senate colleagues to take swift action on this crucial legislation,” he wrote. Senator Cruz was referring to his Ensuring Lawful Collection of Hidden Assets to Provide Order (EL CHAPO) Act, that he had introduced in 2017 and reintroduced on January 3rd. President Trump could insist that a commitment to enact legislation along the lines of the EL CHAPO Act be part of the compromise border funding deal. Watch the Democrats squirm if they resist.

President Trump has the moral high ground when it comes to taking measures to secure the American people against the crime and drugs brought by uncontrolled illegal border crossings. He needs to remain firm in his resolve to follow through on his core campaign promises while showing flexibility in how he achieves his objectives.

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