Donald Trump’s No Good, Very Bad Day In Court

President Trump lost another court decision regarding his border wall on Friday. Actually, the decision regarding the wall was only one of five court decisions that the president lost that day, but the ruling against the use of presidential emergency powers to get around congressional opposition is a singularly important one for the rule of law and the Constitution.

In West Texas, U.S. District Judge David Briones, a Clinton appointee, ruled that Donald Trump’s attempt to reprogram money appropriated by Congress for other purposes toward building a border wall was “unlawful.” Briones wrote that the 2019 omnibus spending bill specifically allocated $1.375 billion for border fencing and limited construction to the “Rio Grande Valley sector” of Texas.

“The Congressional language in the [bill] reveals Congress’s intent to limit the border barrier funding,” Briones wrote, adding “the plain text of the CAA [Consolidated Appropriations Act] restricts the amount and location of funding for border barrier construction,” prohibiting the president from diverting money earmarked for military construction and counterdrug operations to the wall.

Stuart Gerson, a former DOJ official from the first Bush Administration applauded the ruling, telling Politico, “As someone who served in government under a Republican administration, I never imagined a Republican president would attempt to expand executive power this far by overriding the appropriations power that belongs to Congress.”

“I hope today’s ruling will prompt Republicans in Washington to recommit to the checks and balances that have defined our Republic and protected our freedom,” Gerson added.

In reality, the fight to preserve congressional budgetary authority is not over. The next step for Judge Briones is to allow both sides to argue the scope of an injunction against using the reprogrammed funds and the Trump Administration is certain to appeal. In July, the Supreme Court dismissed a similar injunction but did not rule on the merits of a separate case challenging Trump’s wall construction.

Elsewhere, three separate federal courts ruled against the Trump Administration’s “public charge” rule that makes it more difficult for immigrants who might need public assistance to get green cards. Judges in New York, California, and Washington issued injunctions that stopped the Department of Homeland Security from enforcing the rule.

In Washington, U.S. District Judge Rosanna Malouf Peterson, an Obama appointee, ruled that the government had "not cited any statute, legislative history, or other resource that supports the interpretation that Congress has delegated to DHS the authority to expand the definition of who is inadmissible as a public charge or to define what benefits undermine, rather than to promote, the stated goal of achieving self-sufficiency." Two other judges, both appointed by Bill Clinton, issued similar rulings.

Acting Director of US Citizenship and Immigration Services Ken Cuccinelli argued in a statement that the rule, which exempted immigrants who have been granted asylum, lawful permanent residents and refugees, merely enforced current immigration law.

"The public charge regulation defines this law to ensure those seeking to come or stay in the U.S. can successfully support themselves financially and will not rely on public benefits as they seek opportunity here,” Cuccinelli said.

Friday’s injunctions were based on the likelihood that the plaintiffs suing the government would prevail but did not issue final decisions in the cases. As with the case regarding Donald Trump’s emergency authority, the final ruling is likely to be appealed to the Supreme Court.

Finally, the president also lost an appeal to overturn a decision requiring that he comply with a House subpoena to provide his tax documents. The US Court of Appeals for the District of Columbia Circuit ruled two to one that the president must turn over eight years of accounting documents. Judges appointed by Obama and Clinton comprised the majority while a Trump appointee dissented.

"We detect no inherent constitutional flaw in laws requiring presidents to publicly disclose certain financial information. And that is enough," the ruling stated.

Even though the five rulings fell along party lines, the evidence that activist judges ruled against Donald Trump out of tribal allegiances is slim in two of the three cases. The sole exception is the immigration cases, which hinge on Section 212(a)(4) of the Immigration and Naturalization Act The INA states that “any alien who…  is likely at any time to become a public charge is inadmissible.” As the Immigrant Legal Resource Center explains, the new policy reinterprets the vague language of the law to change the standard from “assessing whether an applicant is likely to become primarily dependent [emphasis theirs] on the government for income support” to redefine a “public charge as a person who receives any number of public benefits [emphasis mine] for more than an aggregate of 12 months over any 36-month period of time.” This is a vastly more restrictive policy, but it would seem to be within the bounds of bureaucratic rulemaking.

When it comes to congressional subpoenas, however, the Administration seems to be in the wrong. Neomi Rao, the dissenting Trump-appointed judge, wrote, “The Constitution and our historical practice draw a consistent line between the legislative and judicial powers of Congress. The majority crosses this boundary for the first time by upholding this subpoena investigating the illegal conduct of the President under the legislative power.”

However, the Supreme Court ruled in 1927 that Congress’ power to investigate is implicit. A majority held, “In actual legislative practice power to secure needed information by such means has long been treated as an attribute of the power to legislate. It was so regarded in the British Parliament and in the Colonial legislatures before the American Revolution; and a like view has prevailed and been carried into effect in both houses of Congress and in most of the state legislatures.” Republicans had no problem with congressional investigations into the IRS, Solyndra, and Fast and Furious.

But it is President Trump’s attempt to use a national emergency to subvert the express will of Congress that is the Administration’s most egregious example of poor legal reasoning. As Republicans were fond of pointing out during the Obama years, the Constitution explicitly gives the power of the purse to the House of Representatives, which declined to give the president the money that he requested for his wall. Congress’s decision to reject the president’s request does not constitute a national emergency, especially when the situation has been ongoing for decades, including two years of the current Administration in which the current president rejected three deals for wall funding.

The national emergency not only defies the Constitution and common sense, it also defies the National Emergencies Act, which does not give the president unlimited power. Even if the emergency was genuine, Trump’s actions go beyond the limited power delegated by Congress, such as the stipulation that the emergency “requires use of the armed forces.”

A final ruling striking down Donald Trump’s abuse of national emergency authority would not only be a good thing, it is vital to the constitutional balance of powers. If all the president has to do to bend Congress to his will is to find some dubious grounds to declare an emergency then Congress becomes extraneous and unnecessary. We will have moved from a constitutional republic to rule by presidential decree.

“Today’s ruling vindicates the Founders’ wisdom and confirms that the president is not a king and that he cannot override Congress’s power to decide how to appropriate funds,” Kristy Parker, a plaintiff’s attorney with Protect Democracy said of the ruling on the border wall.

Here’s hoping that the constitutionalists on the Supreme Court see it the same way.

Originally published on The Resurgent

July 27th, 2019 Trump Wins Victory On Wall At Constitution’s Expense

Yesterday, the Supreme Court ruled in a 5-4 decision to lift a stay by a lower court judge preventing President Donald Trump from reprogramming funds appropriated by Congress to build the wall. The decision will allow the president to use $2.5 billion in funds designated for defense spending to begin construction on about 100 miles of border wall. Republicans applauded the decision, but the blows being struck against the Constitution’s balance of powers will have lasting consequences.

The ruling stems from President Trump’s decision to declare a national emergency on the southern border last February and move money appropriated by Congress for other purposes to the construction of the border wall. Under the president’s plan, $600 million from the Treasury Department’s forfeiture fund, $2.5 billion from Defense Department counter-narcotics activities, and $3.6 billion from military construction projects would be reprogrammed to finance construction of the wall. Friday’s ruling regards the $2.5 billion for the Defense Department, which Trump had designated for fencing in Arizona, California, and New Mexico.

Plaintiffs in the case were a group of environmental groups led by the Sierra Club and represented by the ACLU. The groups argued that they had “recreational and aesthetic interests” such as “hiking, birdwatching, [and] photography” in areas near the border. In June, a federal judge appointed by Barack Obama agreed and blocked the transfer of funds. Earlier this month, a three-judge panel from the Ninth Circuit upheld that decision in a two-to-one vote, noting that Congress had appropriated $1.375 billion for border barriers, rather than the $5.7 billion requested by the president. In the court’s view, that meant that the $2.5 billion had been “denied by the Congress.”

“As for the public interest, we conclude that it is best served by respecting the Constitution’s assignment of the power of the purse to Congress, and by deferring to Congress’s understanding of the public interest as reflected in its repeated denial of more funding for border barrier construction,” Judge Michelle Friedland, an Obama appointee, wrote for the court.

The Trump Administration appealed the stay to the Supreme Court, which ruled on Friday, that, “The government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review.” This means that the injunction preventing the Trump Administration from spending the reprogrammed $2.5 billion is lifted and the case returns to the lower court.

The Supreme Court’s five conservatives voted to lift the stay while Justices Ginsburg, Kagan, and Sotomayor dissented. Justice Stephen Breyer proposed a compromise in which the government could negotiate contracts but not actually spend the reprogrammed money until the case was fully decided.

While the ruling is understandably being celebrated by Republicans, the decision, along with another June decision by a different federal court, puts the judicial thumb firmly on the executive branch’s side of the scale that represents the balance of federal power. In the June decision, a Trump-appointed judge rejected a similar lawsuit by House Democrats, arguing that the national emergency spending represented a political dispute that was outside his authority to decide.

The fundamental problem is that courts are tying the hands of Congress in the face of abuses of executive authority. President Trump moved the funds under a federal statute that allows money to be reallocated to address “unforeseen needs” that have not been “denied by the Congress.” In the case of the border wall, neither condition applies. The problem of illegal immigration is hardly unforeseen, having been a hot button issue for more than a decade. The question of the border wall is one that has been repeatedly considered and denied by Congress. In fact, Trump’s national emergency declaration came immediately after the government shutdown in which he demanded unsuccessfully that Congress appropriate money for the wall.

As Republicans were fond of noting during the Obama era, the Constitution gives the House of Representatives the power of the federal purse. If federal courts refuse to rein in an executive that flouts the rule of law in order to bypass an uncooperative Congress, then the constitutional power of Congress is weakened and the president, already much more powerful than the Framers envisioned, becomes even stronger and less accountable. If the courts won’t uphold the constitutional role of Congress in the appropriation of funds then impeachment may be Congress’ only weapon against an out-of-control executive branch.

The judicial battle over national emergency funding for the border wall is not over yet, however. The Sierra Club case will now go back to the lower court to be decided. House Democrats are also appealing the lower court ruling in their own lawsuit against the president’s transfer of funds. It is entirely possible that one or both cases will return to the Supreme Court for a ruling on the question of whether using a national emergency to bypass congressional appropriations is constitutional, rather than the technical question of whether plaintiffs have the legal standing to sue.  

The idea that a border wall is the answer to the illegal immigration problem has become an article of faith on the right. Personally, I have my doubts about whether a barrier along the border would be as practical or effective as its proponents claim (click here for details). However, the legal question that needs to be answered is not whether a wall is a good idea but whether the president can unilaterally transfer funds appropriated by Congress to programs that were specifically rejected by Congress.

For Republicans to back the president on that question is to support a broad expansion of executive power at the expense of Congress. Backing that expansion confirms that Republicans are not a small government party of constitutionalists but a party that favors big government solutions when they come from the right. With many new Trump appointees on the bench, it is entirely possible that Republicans may get their wall over the objections of Congress, but the expansion of presidential power may come back to bite them.

Originally published on The Resurgent

14 House Republicans Join Failed Veto Override Attempt

Yesterday the House of Representatives failed to override President Trump’s first veto. Last month, the president vetoed the resolution halting his use of a national emergency to reallocate funds from other programs to construction of the wall.

The House attempt had the support of a majority of congressmen but fell 38 votes short of the two-thirds majority required by the Constitution to override a veto. In all, 248 congressmen, including 14 Republicans, voted to override the veto. The move was opposed by 181 Republicans and no Democrats.

The Republicans who voted to rein in the president’s emergency declaration were Justin Amash (Mich.), Brian Fitzpatrick (Penn.), Mike Gallagher (Wisc.), Jaime Herrera Beutler (Calif.), William Hurd (Texas), David Johnson (S.D.), John Katko (N.Y.), Thomas Massie (W.V.), Cathy McMorris Rodgers (Wash.), Tom Rooney (Fla.), Jim Sensenbrenner (Wisc.), Elise Stefanik (N.Y.), Fred Upton (Mich.), and Greg Waldon (Ore.). Two other Republicans, Kay Granger (Texas) and Joe Wilson (S.C.), joined Democrat Jackie Speier (Calif.) in not voting on the bill.

The override attempt picked up six votes over the original House bill passed in February. Thirteen House Republicans supported that bill while 12 Senate Republicans voted against the national emergency.

The override attempt occurred on the same day that the Senate Republicans staged a show vote on Alexandra Ocasio Cortez’s proposed Green New Deal. In the upper chamber, Democrats refused to stand for the unpopular measure, which was defeated 57-0 with 43 Democrats voting “present.”

In a day of show votes, it is likely that the Republicans got the worst end of the deal. While Democrats eluded Mitch McConnell’s attempt to put them on record defending the Green New Deal, House Republicans walked into a trap set by Nancy Pelosi.

The override attempt was doomed to fail, but the short-term victory has put Republicans in a tight spot. Even though Republican voters solidly support Trump’s proposed wall, the nation at large is split on the issue. Polling from February found that about a third supported the wall while another third called it “totally unnecessary.” The remaining third supported border security but said that there were “better options” than the proposed wall. Despite, or perhaps because of, President Trump’s hard line on immigration, the number of Americans who want increased immigration has increased by nine points since 2016.

If support for the wall is closely divided, support for the national emergency is not. Polling has consistently shown that Americans oppose the use of the national emergency by double-digit margins with opposition to the wall reaching 60 percent or higher at times.

Morning Consult pointed out the difficulty for Republicans earlier this month. Seventy percent of Republican voters are more likely to back a congressman who supports the president on the national emergency, but 60 percent of other voters say that upholding the national emergency declaration makes them less likely to vote for a candidate. A large majority, 78 percent, said the issue will be a factor in their vote.

President Trump’s emergency declaration placed congressional Republicans into a damned-if-you-do and damned-if-you-don’t situation. Supporting the president looks good to primary voters, but could cause trouble in the general election. The 14 Republicans who crossed the aisle have the opposite situation. Both groups are in trouble with one group of voters or the other.

Unlike the Senate vote on the Green New Deal, the vote to uphold President Trump’s veto and protect his expansion of presidential power at congressional expense is likely to be remembered when voters go to the polls next year. Republican incumbents who protected the president may fare well in primaries, but their failure to hold the president accountable may cost the party dearly in November.

Originally published on The Resurgent

Senate To Block Trump’s National Emergency, Veto Expected

In a rare rebuke of President Trump, Senate Republicans are expected to join with Democrats today to pass a House resolution blocking the president’s emergency declaration and redirection of other funds toward construction of the wall. President Trump has said that he plans to veto the measure if it passes.

Republicans currently hold 53 seats in the Senate and at least five Republican senators are expected to vote against Trump on the resolution, which has already passed the House. Sen. Mike Lee (R-Utah), who originally said that Trump had the authority to declare an emergency, is the most recent Republican to line up against the president. On Wednesday, Lee told Reuters, “ For decades, Congress has been giving far too much legislative power to the executive branch. I will be voting to terminate the latest emergency declaration.”

Other Republicans voting against the measure include Rand Paul of Kentucky, Lisa Murkowski of Alaska, Susan Collins of Maine and Thom Tillis of North Carolina. Still others, such as Sens. Marco Rubio of Florida, Mitt Romney of Utah, Lamar Alexander of Tennessee, Johnny Isakson of Georgia,  Ron Johnson of Wisconsin, Ben Sasse Nebraska, and Jerry Moran of Kansas are among the Republicans who could join them.

In an ironic claim, President Trump has announced that he plans to use his constitutional veto power to block the resolution that rolls back his abuse of executive authority. In a Thursday morning tweet, the president said, “I am prepared to veto, if necessary. The Southern Border is a National Security and Humanitarian Nightmare, but it can be easily fixed!”

https://twitter.com/realDonaldTrump/status/1106144173458161664

Even though a number of Republicans are crossing the aisle to rein the president’s attempt to bypass Congress’s constitutional authority to appropriate funds, it does not appear that enough Republicans are willing to stand up to Mr. Trump to override a veto.

While President Trump can win the immediate battle with a veto, he is still likely to lose the larger battles of public opinion and getting the wall built. Most polling shows that although voters are split on the wall, they overwhelmingly oppose the use of a national emergency to fund it. A Politico/Morning Consult poll released yesterday found that 52 percent of voters oppose the national emergency, up one percent from a month ago. Ominously for Republicans, independents oppose the declaration by a two-to-one margin.

Even if his veto is upheld, the wall is unlikely to be built anytime soon. The emergency declaration is a transparent attempt to avoid compromising with congressional Democrats that almost certainly violates the letter of the law, as well as its spirit. Sixteen states, including several in the Southwest and along the border, have filed a lawsuit to block Trump’s redirection of federal funds. Courts are likely to block Trump’s executive move and halt construction of the wall for years until the legal questions can be resolved.

As with the government shutdown, President Trump has painted himself into a corner with no good options. The president is doubling down on an unpopular strategy in an attempt to force through a policy that is unpopular outside his own party and that is unlikely to be effective at solving the illegal immigration and smuggling problems on the southern border. The fact that the wall costs billions of dollars at a time when the federal deficit is skyrocketing is icing on the cake.

The president is putting other Republicans in a bad position as well. Congressional Republicans are being forced to go on record either for an unpopular policy or against a president that is popular with the Republican base. The first option will harm them in the next year’s general election while the second will hinder them in their primaries.

In the end, the principled choice for Republicans should be to stand up against the president and for the rule of law. After eight years of criticizing President Obama’s executive abuses and rampant spending, it will be very difficult for Trump Republicans to sign off on the president’s end-run around Congress and debt-fueled spending binge without looking like hypocrites in the eyes of voters around the country.

Originally published on The Resurgent

16 States Sue Over Trump’s Emergency Declaration

Sixteen states have filed a lawsuit to stop President Trump’s attempt to use an emergency declaration to reprogram federal money to fund his border wall project. The group of states joining the lawsuit includes two states located on the Mexico border along with another three states near the southwestern border.

The complaint was filed in California’s Northern District by California Attorney General Xavier Becerra accuses Trump of “flagrant disregard for the separation of powers” by redirecting money appropriated for the states to the wall construction after Congress rejected the president’s request. In addition to California, the lawsuit includes Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, and Virginia. The states all have Democrat attorneys general and all but one have Democrat governors.

The lawsuit says, “By the President’s own admission, an emergency declaration is not necessary.” In his speech announcing the emergency declaration, Trump said, “I could have done the wall over a longer period of time. I didn’t need to do this.” The lawsuit also notes that the federal government’s own data show there “is no national emergency at the southern border that warrants construction of a wall.”

The lawsuit also claims that the states would be harmed by the reprogramming of money that Congress appropriated for law enforcement and anti-drug efforts. In the case of California and New Mexico, the complaint alleges that the wall construction would cause “irreparable environmental damage.” These claims give the states standing to bring suit against the plan.

The president intends to reprogram $8 billion in federal funds using the emergency declaration. Congress appropriated $1.375 billion in the Homeland Security funding bill and the president plans to use $600 million from Treasury Department drug forfeiture funds, $2.5 billion from a Department of Defense counter-narcotic fund, and $3.6 billion from the military construction budget.

While Donald Trump is not the first president to declare an emergency, he is the first to do so specifically because Congress refused his request to appropriate money. When asked by Chris Wallace on Fox News Sunday if he could point to a single case “where the president asked Congress for money, Congress refused to give him that money, and the president then evokes national emergency powers to get the money?” Miller could not cite a single example.

Wallace also pointed out that the majority of drugs entering the country come through ports of entry, not unfenced portions of the border. Miller agreed, “Which is the reason why we also ask for additional resources at the ports of entry.”

“But this is what you got,” Wallace answered, noting correctly that the funding agreement passed earlier this month included $615 million for new equipment at ports of entry.

Writing for National Review, David French pointed out that the Trump Administration is forced to twist the law in order to use the military construction money for the border wall. The stipulations for reprogramming this money in an emergency are that the crisis “requires use of the armed forces” and that the construction is “necessary to support such use of the armed forces.” The border situation, a civilian law enforcement problem, fails the test on both counts. Under the Posse Comitatus Act, the military is prohibited from engaging in domestic law enforcement.

The lawsuit against President Trump recalls a similar lawsuit brought against Barack Obama by House Republicans. Under John Boehner, the GOP sued Obama for spending money on Obamacare subsidies without the money having been appropriated by the House. Federal District Judge Rosemary Collyer ruled against President Obama’s executive overreach in 2016, saying, “Congress is the only source for such an appropriation, and no public money can be spent without one.”

The recent bipartisan spending bill limited the construction of new border fencing to specific areas. It is not clear if the Trump Administration will attempt to use the national emergency to construct fencing in areas that were not authorized by Congress.

The lawsuit by the states is likely to be only the first in a series of legal attempts to rein in the Trump Administration’s use of emergency authority to bypass a stalemated Congress. It is possible that House Democrats may launch a lawsuit similar to the Republican effort against Obama to protect the House of Representatives’ constitutional role as the keeper of the government purse.

As the legal battle stretches into the election year, the blowback is likely to damage Republican efforts in Congress as well as President Trump’s re-election campaign. Americans are split on the border wall with about 30 percent in favor, but public opinion is strongly against the national emergency. Polls consistently show that two-thirds of voters oppose the use of a national emergency to fund the wall. A long, drawn out, unpopular legal fight for an unpopular project is not a good way to start an election cycle.

Worse is the fact that the party that claims to represent constitutionalists is twisting the law to enact a policy against both the rule of law and the will of the people. The framers did not intend for presidents to find ways to subvert Congress when legislators failed to act. They did intend for elected officials to be responsive to the voters. The fact that President Trump was elected 2016 does not grant him carte blanche.

President Trump made his case for a border wall to the American people in both 2016 and 2018 and failed to receive a mandate in either election. The Democrats hold the House in no small part because voters chose to rebuke the Trump Administration for its hardline immigration policies. If Mr. Trump refuses to accept that rebuke, it is likely that voters will deliver another in 2020.

Originally published on The Resurgent

Abuse Of Presidential Power Is The National Emergency

President Trump’s planned declaration of a national emergency on the southern border today is exactly the sort of thing that prompted many conservatives to oppose his presidency. In declaring a national emergency based on Congress’s failure to take action to the president’s liking, Trump sets a horrible precedent that will probably fail to get the wall built and will certainly come back to haunt Republicans.

To begin with, there is no national security emergency.  Illegal border crossings are near a 50-year low even though the arrests of families at the border have increased in recent months. Contrary to Trump Administration claims, there is also no wave of violent crime associated with immigrants, either legal or illegal. Statistically speaking, border counties are some of the safest counties in the country.

If illegal immigration didn’t constitute a national security emergency when the number of illegal border crossings was five times the number that we have today and it wasn’t an emergency in the wake of the September 11 attacks, it is difficult to see how it is an emergency today at much lower levels after 18 years in which no illegal immigrant has been connected to a terrorist attack and more than six times as many suspected terrorists were caught crossing the Canadian border than entering from Mexico.

In fact, illegal immigration wasn’t considered a national emergency for the first two years of President Trump’s presidency. In January 2018, Senate Minority Leader Chuck Schumer offered $25 billion for a border barrier, much more than Trump hopes to get from his emergency declaration, but President Trump didn’t accept the deal. If illegal immigration was a national emergency all along, then why didn’t Trump jump at Schumer’s deal? For that matter, why didn’t Trump declare a national emergency two months ago prior to the government shutdown? What changed?

The answer is that Trump was beaten by the Democrats and needs to shore up his base. The crisis is not that illegals are threatening the security of the nation, but that Trump’s poor legislative abilities are threatening his approval rating among Republicans.

Unfortunately, Trump’s emergency declaration is an ill-conceived plan that is borne of desperation and is certain to blow up in his face. As with the shutdown, the president is attempting to use an unpopular strategy to enact an unpopular policy. By two-to-one margins, voters oppose an emergency declaration. With the beginning of the 2020 primary season only a year away, the move may spark enough division among Republicans to encourage a primary challenge against Trump. It may also kill Trump’s chances of winning enough moderates and independents to secure a second term.

The move is also unlikely to result in construction of the wall. The president isn’t allowed to declare a national emergency to bypass Congress when legislators choose not to act on longstanding problems. Trump’s decree will be challenged in court and is likely to be overturned.

The worst part of the national emergency declaration is the precedent that it sets. President Trump got his ideas on the use of executive powers from Barack Obama but Trump is pushing the envelope of the imperial presidency even further. The next Democrat is also likely to push the boundaries even more and dare Congress to stop him.

There are many “national emergencies” that Democrats could choose to act upon. They could use executive powers to tackle climate change, assault weapons, the national debt, racism, and who knows what. If the guiding principle is not the Constitution but the ability to rhetorically turn a problem into a crisis, the opportunities for executive action are limited only by Democratic imaginations.

As with President Obama, Donald Trump’s abuses of his executive authority are more of a crisis than the problems that he purports to address. It is past time for Congress to rein in the presidency and put limits on the power of the chief executive to act unilaterally. If Congress doesn’t limit President’s Trump’s abuses of power, it will be up to the voters to do so.

Originally published on the Resurgent

Why Trump’s DACA Offer Failed And What He Should Do Next

President Donald Trump has proposed a compromise offer to end the shutdown impasse and Democrats seem to have rejected it out of hand. While Trump’s deal has been lauded by many Republicans, in reality, it is not as magnanimous as it seems. Even though Trump’s offer is a step in the right direction, it is completely understandable why Democrats have rejected the offer.

Trump’s offer includes $5.7 billion for a wall that would not stretch the full length of the border but be placed in strategic locations. Construction would include the 115 miles now under construction or under contract, and 230 more miles this year. In exchange, the president offered Democrats three years of relief for 700,000 DACA participants. This would include the ability to get work permits, Social Security numbers and protection from deportation.

While the border barrier part of the offer seems fair, the DACA portion is problematic. Essentially what Trump is saying is that if you give me everything I want, I’ll give you something slightly better than the status quo for three years and, at that point, we are back to square one. Trump gets something permanent and the Democrats get something temporary.

A big part of the problem is that Speaker Pelosi knows that Congress is unlikely to fix the immigration problem three years from now. Congress has neglected to act on illegal immigration since 2007, largely because Republicans oppose anything that can be termed “amnesty,” which in their view means “anything other than deportation of all illegals.”

If President Trump wins the 2020 election and Republicans retain control of the Senate, a DACA fix would be dead on arrival. Some radical Republicans oppose a pathway to legalization under any circumstance as much as radical Democrats oppose a wall under any circumstances.

Prospects for a standalone DACA deal look bleak even if Democrats have a good year in 2020. If they win the Senate but not the White House, President Trump can veto the bill. If Democrats win both the presidency and the Senate, Republicans will most likely retain enough votes to filibuster a Democrat immigration bill.

For years now, I have held the opinion that the only way to solve the problem of illegal immigration is with a comprehensive reform bill. Both sides want different things and neither has enough votes to pass their own priorities. Both sides do have enough votes to block the other, however, so the result is a stalemate. There are only two possible solutions: Either wait until your party controls the presidency, the House, and has a supermajority in the Senate or else meet in the middle with a compromise.

President Trump is on the right track with his offer, but there are several elements that a successful bill must include. To minimize the effect of the law of unintended consequences as well as to get the necessary votes to pass, a compromise bill must contain:

·        Border security with triggers to make sure that a secure border is in place before the pathway to legalization. Security should go beyond a wall in select areas and include sensors to detect tunnels as well as an increased Border Patrol presence.

·        In exchange, Democrats get a pathway to legalization, not just for DACA participants, but for illegals who reside in the US and hold productive jobs with no record of serious or violent crimes. (Yes, illegal immigration is a crime, but it’s a crime in the same way that speeding is a crime. Improper entry by an alien is a civil infraction punishable by a $50 fine.) Legalization should be on a case-by-case basis with priority toward illegals who benefit their community and the US economy.

·        In exchange for leniency, penalties need to be severe enough to deter future illegal immigrants. Illegal immigration should be a felony punishable by prison time followed by mandatory deportation.

·        E-verify should be implemented to require businesses to hire legal immigrants only. Penalties should be stiff for those who knowingly violate the law.

·        In exchange for stronger penalties, the US needs to revamp current immigration law to make it easier for migrants to legally enter the country to work for US employers and then return home. There should be a guest worker program to avoid a labor shortage when the flow of illegal migrants is cut off.

·        The immigration process for permanent immigrants also needs to be reformed. Currently, the US educates foreign students in our colleges and then denies them green cards to work for our companies. This makes no sense and is actually encouraging companies to move outside the US. Decades-long waits for legal immigration encourage illegal immigration and need to be fixed.

·        Finally, visa overstays make up two-thirds of new illegal aliens. A system to track foreigners here on visas needs to be put into place.

Even with such a sweet deal, Democrats might not take President Trump up on his offer. After two years of name-calling and goading the opposition party, Trump may have so poisoned the well that no deal is possible. However, if Democrats turn down a total and fair reform of the immigration system, they will have to answer to their own base.

Ironically, Donald Trump might be the president who could deliver Republican votes for comprehensive immigration reform. In the same way that only Nixon could go to China, Trump’s hardline reputation on immigration and his devoted following from his base could inspire Republicans to support a comprehensive bill where they would desert most traditional Republicans. However, there is a significant risk for Trump that his base would fracture over what they perceive as amnesty. Anne Coulter is Exhibit A for this possibility.

Despite the risks for Trump, he obviously needs to sweeten the pot to bring Democrats on board. Doing so will require significant and permanent concessions from the GOP. That is the only way that a wall is going to happen.

Originally published on The Resurgent

How To Solve The Immigration Problem

With the revelations about the Trump Administration policy of separating children of illegal immigrants from their parents, federal immigration policy is back in the headlines. After the failure of the DACA deal earlier this year, the controversy gives Congress another chance to finally fix our broken immigration system.

The first step in the immigration fix is to realize that it requires a bipartisan compromise. Some of my conservative friends have fought immigration reform for years on the grounds that border security should come first. This stance has resulted in the status quo on the border being preserved for a decade. Republicans need to realize that unless they get enough Senate votes to end a filibuster, a standalone border security bill is never going to pass.

There is no indication that the GOP is going to get a supermajority any time soon. With prospects in the midterm elections looking gloomy, it will be a struggle for Republicans to maintain control of the House, let alone seize a filibuster-proof lock on the Senate.

If the border is going to be secured, it must be as part of a comprehensive immigration reform bill. Unfortunately, President Trump has poisoned the well with his demands for a “big beautiful wall” and Democrats have become so crazed in their anti-Trump stance that they were unable to accept a generous compromise on DACA in February.

In the wake of that failure and with job creation booming, immigration policy should be ripe for reform. Public opinion has favored reform for years. Democrats apparently believed that any failure to pass a bill would be blamed on Republicans, but their resistance backfired as DACA protesters rallied against the DNC. Further foot-dragging could erode their base.

For their part, Republicans usually favor changing laws that don’t work, but immigration law has become a sacred cow. Taking a closer look at current law shows that it is unworkable. The border is not sealed and penalties for illegal immigration amount to a slap on the wrist. To make matters worse, legal immigration is so restrictive and difficult that it encourages people to break the law and cross illegally or overstay visas.

The status quo also risks alienating the traditional Republican support from businesses. Under President Trump, temporary work visas have been reduced. I described last month how the shortage of visas is wreaking havoc in the Maryland crab processing industry and with other employers around the country who depend on immigrant workers. Recent reports that the US now has more job openings than workers to fill them underscore the need for more legal immigration. Conservatives should realize the effect of the Law of Unintended Consequences on shutting off the flow of immigrant labor.

Some conservatives argue that employers should simply pay higher wages to attract American workers. This is akin to the liberal argument that employers should simply pay more to provide health insurance benefits for their workers. Both arguments ignore the economic reality that businesses must be profitable to exist. If companies pay higher labor costs, they must raise prices. If prices are too high, consumers stop buying their product. Companies can either go out of business because they have no workers or because they have no customers.

The basic idea of an immigration compromise is a simple one. First, tie other reforms to border security with established triggers. Other permanent reforms do not go into effect unless the border is secure.

Other aspects of the compromise would include a pathway to legalization (not necessarily citizenship) for current illegals. It is unrealistic to expect the deportation of the millions of illegals currently in the US, especially considering that doing so would leave many of their children, American citizens, without parents to provide for them and entitle them to benefits from an already-strained welfare system. Mass deportations would require an expensive expansion of the police state that should alarm conservatives and libertarians. Let’s acknowledge that many illegals are integrated into society and are contributing to the economy.

That doesn’t mean that there should be an amnesty for illegal immigrants. As immigration hawks point out, they did break the law and should be punished. Punishment does not have to involve deportation however. Punishment could also be in the form of delayed or denied citizenship, paying fines and back taxes, community service, probation and background checks.

To help businesses and farmers, a guest worker program should be implemented. Many American jobs, like those of Maryland’s crab fishermen, depend on a symbiotic relationship with immigrant labor. It is estimated that each visa job creates 2.5 jobs for American citizens. American crops should not be rotting in the fields because there is no one to pick them.

Priorities for immigrants should be changed to accept more immigrants who can contribute to the American economy. Our current system allows foreign students to be trained at American universities, but then denies them the ability to work for American companies. Instead, American-educated engineers and scientists are sent abroad to work for companies that compete against us. Immigrants with degrees in science, technology, engineering and math should be at the top of the list to immigrate.

In return, illegal immigration should be made a felony with a punishment severe enough to deter illegally being in the US. A better system of tracking visitors who come to the US on visas is needed to prevent overstays. The carrot-and-stick approach would make immigration easier for legitimate workers while punishing illegal immigrants more severely.

Aside from the boost to the economy, another big advantage to solving the problem of illegal migrant workers would be in a more efficient border security system. If there is a viable path for workers to enter the country, law enforcement can focus on the smugglers, violent criminals and terrorists who would still be using the back door. There would be fewer sheep to hide the wolves.

There is broad agreement from both sides on most of these details. The difficulty in reforming our broken immigration system is in having the will to buck the extremists on both sides who prefer to keep the current broken system rather than compromise to solve the problem.  

Originally published on The Resurgent

A Government Shutdown Is A Bad Idea

There are some issues that conservatives of good conscience can disagree on and remain well within core conservative principles. One of these is the issue of shutting down the government. As President Trump and congressional Republicans consider shutting down the government over funding for the “big, beautiful wall,” they should avoid falling into what is Democrat trap.

The core problem for Republicans is a lack of votes. Although Republicans have a majority in both houses of Congress, the margins are slim and they lack the 60 votes required to end a Democrat filibuster. As a legislative strategy, a government shutdown does nothing to resolve this problem.

The only way for Republicans to pass a bill funding the wall, or anything else for that matter, is to make Democrats and moderate Republicans change their votes. The way to do that is to sweeten the pot. To give Democrats something they want in exchange for something that Republicans want.

A shutdown would do the opposite. It would be a combative policy that would further alienate Democrats and give them no incentive at all to vote for the Republican bill. In fact, a government shutdown would play directly into the hands of Democrats who want nothing more than for the Trump Administration to fail.

Further, if Republicans are determined to pick a fight, the border wall is the wrong issue.  Polling indicates that about two-thirds of Americans oppose Trump’s wall. Numerous studies, including one by the Government Accountability Office (GAO), have indicated that a Trump-style wall would be a boondoggle that is hugely expensive yet ineffective. This is especially true in Texas where the Rio Grande forms the border with Mexico and much of the land on the border is privately owned by ranchers who need access to the river’s water.

Add to that the fact that voters don’t like shutdowns. When Republicans shut down the government over Obamacare in 2013, the party’s approval quickly tanked. In fact, Gallup found that Republican approval sank to its lowest point ever. If Obamacare’s failures had not turned the tables on the Democrats, Republicans would have likely suffered a wipeout in the 2014 midterms. Through it all, Obamacare remained intact.

The 2013 shutdown occurred with a Democrat president in office and the GOP still took the brunt of the blame. There is little question who would be blamed if Republicans, who now control the White House as well as both houses of Congress, shut the government down over the wall.

As a strategy, a government shutdown offers very little for conservatives to like. It would be an unpopular strategy used to enact an unpopular policy, but that isn’t the worst part.

The worst part is that it won’t work. A government shutdown would inevitably lead to yet another embarrassing defeat for the GOP and President Trump. There is simply no way for the party to win without Democrat votes for cloture.

Democrats would use a shutdown to tell the country that President Trump and the Republicans are incapable of governing. It would be difficult to prove them wrong.

Originally published on The Resurgent

Will Democrats Shut Down the Government?

Another year, another looming government shutdown.

This year it is Democrats who are threatening to shut down the government to block funding for President Trump’s border wall. Fresh from their victory in blocking reform of the Affordable Care Act, Democrats say that they will filibuster the annual appropriations bill if it includes money for construction of the wall. The bill must pass before April 28 to avoid a shutdown.

“I thought we were going to get a check from Mexico,” Senator Patrick Leahy (D-Vt.) said in Politico. He added that the wall will “accomplish nothing. That’s $30 billion that can’t go into cancer research, diabetes research and veterans care.”

In recent memory, it has been Republicans who have threatened to shut the government down. The most recent example in 2013 followed several shutdowns during the Clinton Administration. While Democrats have been guilty of fomenting shutdowns, we must look all the way back to 1990 for the last example of a Democratic Congress shutting down the government under a Republican president.

While government shutdowns are not uncommon, they also are not popular with voters. Virtually every poll that asks about a government shutdown shows the voting public overwhelmingly opposed to and angry at the prospect. While shutdowns can be popular among the partisan base, most voters want the parties to work together for the good of the country.

When the Republicans shut down the government for 16 days in 2013, they not only failed to achieve their goal of defunding Obamacare, they also saw the party’s approval rating fall to a historic low. A year later, Obamacare’s skyrocketing increases in health insurance premiums and chronic problems with registration on exchange websites saved Republicans from an electoral drubbing. They weren’t so lucky in 1996 when Republican-led shutdowns arguably cost Bob Dole the presidency and ushered in a second term for Bill Clinton.

If Democrats haven’t learned from past shutdowns, Republican leaders apparently have. “We're not going to have a government shutdown,” Speaker Paul Ryan (R-Wisc.) said on CBS last month. “The president doesn't want to have a government shutdown.”

Ryan suggested that the battle over appropriations for the wall could be delayed until next year since plans for the wall have not been finalized. “The big chunk of money for the wall, really, is...next fiscal year’s appropriations because they literally can’t start construction even this quickly,” he said.

Senate Majority Leader Mitch McConnell (R-Ky.) agreed, saying on Fox News that he was “very confident” that a shutdown could be avoided and argued that the Democrats had the most to lose from a potential shutdown. “I would advise President Trump: ‘Don't worry about them sticking that label on you. Congress owns the government shutdown brand,’” McConnell said. “There's no incentive, frankly, for either side to go to the brink.”

Republicans say they intend to keep controversial items out of the appropriations bill. Funding for the wall will be delayed and a measure defunding Planned Parenthood is likely to be inserted into the budget reconciliation, which cannot be filibustered. This may mean that Democrats are left with no hot button issues to demonize in the appropriations bill.

Nevertheless, Democrats in the past have shown a propensity for overreach. Overconfidence after the health care battle and an irrational emotional response to the mere existence of the Trump Administration could lead Democrats into a shutdown battle over nothing.

With President Trump’s approval rating at 35 percent in a recent Quinnipiac poll, Democrats would run the risk of blowback from a shutdown. The strategy might make the president more popular at their own expense. A maxim attributed to Napoleon is, “Never interfere with an enemy while he’s in the process of destroying himself.” Democrats would be smart to follow the French emperor’s advice. 

Originally published on The Resurgent