As widely expected, last Friday, hours after signing a compromise budget agreement, President Trump declared a national emergency on the border. The emergency declaration, at least on the surface, would allow the President to reallocate funds from the Department of Defense to build his much hyped “wall” on the border. Democrats cried foul, found they actually cared about the Constitution and promised to sue. So what are to make of this? To fully understand the situation and its impact we need to look at the background of the issue starting with the 2016 campaign until now.
The 2016 Campaign
While the border has always been a powerful issue in conservative circles (ask Eric Cantor), few Republican Presidential candidates really wanted to address where the party’s base was on the issue. The thinking went it was a losing issue and the party should try and win over voters on the economic front. Well, Donald Trump blew those ideas out of the water. From when Trump visited the Arizona/Mexican border in 2015 to vowing Mexico would pay to build a wall, the then candidate made it his campaign’s signature issue.
The issue helped Trump stand out in a crowded field and arguably hurt him less than most thought among Hispanics in the general election. In the span of six months the President had blown ten years of Republican elite thinking out the window that immigration was a losing issue.
With Trump’s victory, the GOP had unified control of the US government for the first time since 2006. So, what did the party do? They failed to repeal the ACA, using months of political capital on a losing issue. The party pivoted to and succeeded in passing major tax cuts but arguably the majority of the benefits went to large corporations and shareholders.
Despite Republicans embracing Trump on almost every front the one place the party and their new President disagreed on was immigration. For decades, while the party had run on closing the border and stopping illegal immigration, little had been done to accomplish such a goal. Trump was the first Republican to be open and honest about how he would deal with illegal immigration, for good or bad.
But, while Trump might have had strong opinions on the issue and a clear vision the party’s Congressional leaders, its institutions and major donors had different ideas. It seemed only Trump and a few key staffers cared significantly about the issue and over time many of these staffers were forced out of the White House. The one thing they could not control was Trump.
The 2018 Midterms
Mere weeks before the midterm election the President started gallivanting across the country. Instead of talking about the economy and tax cuts as Congressional Republicans urged the President to do he doubled down on immigration. He hit NAFTA for its unfair treatment of workers, China ripping off America and migrant caravans threatening to cross the US border. The result was a GOP gain of two seats in the Senate but a loss of 40 seats and their majority in the House. Democrats made expected gains in state legislatures and Governorships but in the Midwest, where Trump won the Presidency, the party failed to win Iowa and Ohio. The party also lost Governorships in diversifying states like Arizona, Georgia and Florida.
Only after the midterms did GOP leadership coalesce around the idea of a border wall. But, despite this, the bill sent to the President’s desk was far less than the President wanted and he vetoed the measure. Republicans in Congress felt betrayed by the President who had said earlier he would sign the bill. The President demanded over $5 billion to build a wall and Democrats said no. The result was the 35 day partial government shutdown which recently ended.
The 2018/2019 Shutdown
After the President vetoed the “compromise” bill giving him little of what he wanted both sides hunkered down and fired broadsides at one another. By January, Democrats formally took control of the House and repeatedly refused to give the President what he wanted. Despite speeches and a prime-time address, the President was unable to move the Democratic majority in Congress or the public. Polls showed the public blamed the President more for the shutdown than Congressional Democrats.
Both Trump and Speaker Pelosi stuck to their guns and dared the other to blink. In the end it was Trump. What probably spooked the President were stories of federal workers needing to go to foodbanks. But, more importantly, it was flights being delayed at several airports due to a lack of trained air tower control personnel on-site. A three-week deal was signed to continue negotiations. The media fawned over how Pelosi had won the shutdown and bested Trump. In reality, it was the fact the President never had the support of the party in the first place that doomed him.
Toward the end of the shutdown the President began hinting he would declare an emergency to secure the funds he needed to build the wall. While the President came close to doing so he eventually backed off (more in that in a second).
The Emergency Declaration
After two weeks of negotiations Republicans and Democrats on the negotiating committee came to an agreement the President signed. The deal included about $1.4 billion to build physical “barriers” along the border but little else. Unsurprisingly, the deal did not make the President happy. Indeed, the President indicated right after signing the deal he would declare an emergency. Last Friday, he made good on his word.
So, what is the deal with this emergency you might be asking? Well, the emergency Trump declared hearkens back to 1976 when Congress passed the National Emergencies Act giving the President the power to reassign defense funds to specific projects. For the most part, emergencies declared under this law have related to hurricanes and national disasters. But, the risk was always there a President would go as far as Trump has gone to declare the violence on the border an emergency.
For decades, Congress has been ceding more and more authority to Presidents on a multitude of fronts. With Bush, Republicans gave the President the authority to send troops indefinitely into a conflict without a declaration of war. Under Obama Democrats felt it was fine for the President to grant indefinite legal status to those covered under DACA. Arguably, Trump is only using the precedent Congress has set to further his agenda,
Unsurprisingly, Democrats vowed to completely oppose the declaration and promised a resolution of disapproval. A number of Republicans have said they would support the resolution but it is unclear it is enough to clear the Senate and force a veto from the President. With the declaration a number of questions must be asked, especially considering the vocal opposition to such an action.
Who Has Standing To Sue?
One of the big questions is who actually has standing to sue the President? Usually, to have standing, a party must prove they have been harmed by the action in such fashion. For example, when a coalition of over 20 states sued the Obama administration over DACA they argued their finances were adversely impacted. When California and a number of other states sued the Trump administration over his EO on banning individuals from certain countries they made the case their economic interests would be impacted.
This means, it is most likely the entities with the best standing to sue the Trump administration are states. Right on cue, on Monday morning, the state of California and 15 other states sued the administration over the “emergency” declaration. In their reason for suing, they argued the act would eviscerate the Constitutional separation of powers between Congress and the White House. Even so, acknowledging they need to make an economic case for why they have a right to sue the administration, the lawsuit argues Trump diverting DOD and Homeland Security funds originally earmarked for drug interception and military construction projects a bases in California would risk public safety and hurt the state’s economy.
Further, and this is a continuation of a trend begun under Trump’s “Travel Ban,” the lawsuit uses Trump’s words against him by stating Trump has said, “I did not need to do this,” in reference to reallocating funding for the project. Since the state of California is leading the lawsuit, the suit is sure to be heard in the 9th Circuit Court of Appeals and is almost guaranteed to stall Trump’s act. However, it is also likely the suit will be heard in a friendlier Circuit Court leading to split rulings and fast-tracking the case to the Supreme Court.
The Politics of the Emergency
Since 2015, Trump had made the wall the centerpiece of his campaign. Despite repeated promises to build the wall the President has been unable to appease his base. Most pundits have focused on the unpopularity of the wall and the President’s willingness to double down on a failing strategy. For example, polls consistently show the wall has barely 40 percent support with a majority opposed. Fewer than a third support the idea of declaring an emergency to build the wall.
In reality, the emergency declaration allows Trump to divert over $8 billion to wall construction, well above his initial $5.7 billion demand. But, here is the rub, over $4 billion in funding is is already allocated or can be reallocated to the wall without the emergency declaration. Congress allocated almost $1.4 billion for the wall and over $2 billion in DOD funds can be earmarked for the border, leaving the balance in limbo dependent on court proceedings under the emergency declaration.
While important to many voters, the debate over the wall, and the government shutdown, are largely symbolic of the different views the parties have on immigration. Democrats have largely embraced diversity for diversity’s sake, plus they have an electoral incentive. Republicans have not and under Trump have largely doubled down on a strategy of supporting immigration restrictions and restructuring trade deals.
Largely, the debate over the wall reflects the changing nature of America’s electoral coalitions under Trump. Increasingly, suburban voters with nuanced social views and fiscally moderate preferences have migrated to the Democratic Party in droves. Meanwhile, as evidenced by the increasing red hue of the Midwest, Republicans have found increased support among downscale and blue-collar whites.
Heading into 2020, with almost ten Democrats now formally declared for the White House, the conventional thinking is this move will hurt Trump and drag on through litigation through the court system. But, that said, even as Trump has declared the emergency his approval remains pretty steady at 40 to 45 percent (depending on the poll). If you add in a third-party candidate like Schultz running and economic themes dominating the election it is easy to see Trump picking up wayward Independents and Republicans not on immigration but on conventional conservative issues such as the economy, taxes and healthcare, especially as Democrats veer leftward on these issues.
It is an open question whether those things will matter enough though. Obviously, Trump’s lack of popularity stem from his personality and handling of the office. The economy, by all measures, is booming. Considering this, Trump’s approval should be higher. But again, the President’s character and actions weigh him down among women and Independents. Maybe this will change by 2020 when he runs against an actual Democratic opponent he can attack on cultural and policy issues. Maybe not.
It’s also important to keep in mind Trump outran his favorable ratings in 2016 by a whopping 13 percent. Trump gathered 46 percent of the popular vote with a favorability rating of 33 percent. With Democrats mobilized around finding a candidate who can beat the President, Trump will likely need to do better.
So, why dig in on an issue the public is not supportive of? Well, first-off, it seems no matter what Trump does he has a base of 40 percent of voters (basically Republicans). He usually can eclipse this mark of support by one or two percent but tops out around 43 percent. For Trump, the challenge will be to get wayward voters who disapprove of the President to vote for him while keeping his base. By focusing on the wall now, Trump makes his base happy. This enables him to maintain their goodwill even while going after wayward and possible supporters on more traditional, economic right and left issues. This, despite his most fervent supporters dislike, might be the best way to ensure a second term.