If President Trump tries to invoke emergency powers to build a border wall and fails in courts, it would be bad for conservatives. But if he succeeds in court, it would be even worse.
What started out as an idea that Trump floated in response to a press question last week has emerged as an increasingly likely path for Trump to end the partial government shutdown while saving face. Declaring an emergency would allow him to reopen the government, prove to his base he was willing to do everything in his power to build the wall, and then blame the courts for any roadblocks. The idea gained momentum on Thursday when Sen. Lindsey Graham, R-S.C., who is facing re-election in 2020 and desperate to overcome his reputation as an immigration squish, urged Trump to invoke emergency powers to build the wall. In this, Graham follows in the footsteps of his mentor former Sen. John McCain, who ran a ” complete the dang fence” ad when he sought re-election to stave off attacks that he was weak on immigration.
The actual legality of invoking emergency powers in this case will involve a number of questions. Ilya Somin works through these questions and concludes that it would be unlawful. Yale Law Professor John Fabian Witt argues that the law is actually murky. Mark Levin argues that it’s pretty clearly allowed statutorily barring a congressional intervention under the National Emergencies Act of 1976, which he stipulates he believes gives too much power to the executive.
Whatever the legal merits, those are much different from the question of what courts will actually rule, which is anybody’s guess. What isn’t much of a guess is that there will be litigation that will tie up the construction of the wall for a considerable time, regardless of the outcome. That is, should Trump declare an emergency, a lawsuit will immediately be filed seeking an injunction to halt building, and that will certainly be granted so that the case can work its way through the courts. Even under a relatively quick timeline, it’s difficult to see the case making it through the appeals process and to the Supreme Court before 2020.
Separate from the legal question is the political precedent it would set. Liberals are already salivating over the prospect of having the next Democratic president gain emergency powers and using them to enact a liberal agenda on issues such as climate change and healthcare.
Should Trump choose to invoke emergency powers, there would be four basic possible outcomes. One, he loses in court and the wall doesn’t get built. Two, he loses in court but gets re-elected anyway and gets the wall passed legislatively in his second term. Three, he wins in court and builds the wall by the end of his second term. Four, he wins in court but loses re-election, and the wall never gets built. For handy reference, I’ve illustrated this in the table below.
All cases carry risks for conservatives, as in all cases a substantial number of Republicans and prominent conservatives will inevitably endorse the move, thus weakening their ability to resist the next Democratic president who tries to stretch the boundaries of executive power. However, some outcomes are worse than others.
If the Trump loses in court, the wall most likely will not get built; however, it will have a silver lining of having established a court precedent limiting the use of emergency powers, thus hindering the ability of the next Democratic president to invoke them to advance liberal policy goals. If Trump loses in court and the wall eventually gets built, that’s even better for conservatives, as it will reassert limits on arbitrary executive power and they’ll end up getting the wall anyway.
If the Trump wins in court and the wall gets built, at first blush, that would seem like a home run for conservatives. And it’s true that they’d get something they want: a wall. However, in the long run, it also means that it will have established a precedent that will allow the next Democratic president to declare national emergencies to advance liberal policy goals.
That brings us to the final scenario, which would undoubtedly be the worst case scenario for conservatives. In that case, Trump wins the case in court, but the decision comes too late for him to get much construction done by the end of his first term. Then, he loses re-election. The next Democratic president could then stop construction on the border wall but still turn around and use the precedent set by court decision as a means of advancing any big-ticket liberal items that can’t get through Congress. In this case, conservatives give the next Democratic president a blank check and don’t even have a wall to show for it. Nightmare.
If conservatives are skeptical this could happen, they should think about Harry Reid, who as majority leader nuked the filibuster for nominees, allowing the Senate to confirm them with a simple majority. Reid went nuclear in November 2013, a year before Democrats lost control of the Senate. Thus, Democrats were only able to get limited use out of the move before Republicans took over the Senate a year later, and now Trump and Senate Majority Leader Mitch McConnell, R-Ky., have used it to confirm two Supreme Court picks and 85 total federal judges so far. And they expect to pick up the pace over the next two years.
Trump supporters who argue that Trump may as well use emergency powers because Democrats are going to try this anyway should consider whether they’re confident that McConnell would have gone nuclear had Reid not dropped the bomb. It’s an open question, and, regardless, Reid made McConnell’s job infinitely easier. Conservatives already understand this, which is why it has become a popular meme on the right to thank Reid whenever Republicans are able to confirm new conservative judges. They know he paved the way for it.
Conservatives egging on Trump to declare an emergency should be careful of what they wish for. There are very low odds that the strategy succeeds in getting a wall built and too much of a risk that it badly backfires in the long run.