Don’t be fooled by the kabuki lawsuit against President Trump’s wall just filed by Attorney General Xavier Becerra and 15 other Democratic attorneys general. Both sides want the same result, for Trump to prevail at the Supreme Court, as surely he will. This lawsuit and Trump’s wall both are sops to each party’s political base.
Since the Secure Fence Act of 2006 authorized 700 miles of fencing along the Mexican border 654 miles have been built, all during the George W. Bush and Barack Obama Administrations. Not a mile of new wall or fencing has been built under Trump, despite his howling over how much we need this wall and money available to expand the existing barriers. He has never actually wanted to build the wall or he would be doing so now; he just wants the issue to rile up his base.
The Democrats are no better. California leads this lawsuit even though the truth is that the wall along California’s border with Mexico is already built, and was finished in the Obama years. The unfinished parts of the wall are along the Rio Grande River in Texas, and Texas is not a party to the suit.
But California had to file the suit because the venue is the Northern District of California, San Francisco, a court with only Democratic appointed federal judges that can reliably be expected to rule as the Democrats want, as it has done on the other Trump suits filed in San Francisco. Once we have a ruling out of San Francisco it will go the reliably Democratic Ninth Circuit Court of Appeals, which Democrats can count on ruling in their favor.
So the Democratic base will be happy even though they are very likely to lose at the US Supreme Court.
The California courts should throw out this suit on the grounds there is no controversy along our border. The suit itself admits that at best only 23 of new fencing could be built in California, while our border with Mexico runs for 130 miles. In San Diego County, 46 of the 60 miles of border are already fenced, and the only unfenced area is in the Otay Mountain Wilderness Area, a region known to be extremely rugged with steep canyons and hills, so unlikely to need a wall.
In Imperial County, 59 miles of the 70 mile border are already fenced, and the unfenced area has been described as mountainous landscape, in other words areas where no wall is required. The Arizona and New Mexico borders are also mostly fenced already; the only unfenced parts of the border are in Texas. The just passed budget bill specifically provides for about 50 miles of new fencing around Brownsville at the mouth of the Rio Grande.
The Becerra lawsuit argues very persuasively that there is no border crisis as illegal crossings are way down compared to past decades. This is true but irrelevant, because Trump is basing his power to act on a 1976 law called the National Emergencies Act. The suit says this act was designed to “insure that the president’s extraordinary emergency powers would be utilized only when emergencies actually exist.”
Unfortunately, the truth is exactly the opposite; this Act is a huge loophole allowing presidential emergency actions at the chief executive’s whim. According to the Brennan Center, it has been used 58 times since 1978, and 31 of these “emergencies” are still in effect. The Act has included such gems as an “emergency” prohibition on rough diamond imports from Sierra Leone. Then there is my personal favorite, an “emergency declaration” blocking property of certain persons contributing to the conflict in Côte d’Ivoire. Anybody know there was a conflict in the Côte d’Ivoire?
So what is this suit really all about? The Democrats fully expect it to wind up at the Supreme Court where the justices will vote their ideology and uphold Trump’s emergency powers on a five to four vote. This is exactly what happened with the Trump Muslim travel ban, struck down at the Ninth Circuit but upheld as part of the president’s powers.
Why should Democrats want this result? Well, fast forward to 2021 when President Kamala Harris is stopped from confiscating guns by the U.S. Senate. She will then exercise her emergency powers to do so and Supreme Court precedence will have to approve. Or when President Harris is stopped in Congress from closing down factories emitting greenhouse gases and she uses her emergency powers to save the earth from global warming. Or when President Harris cannot get her proposal to abolish private health care through Congress but then does it through her emergency powers.
Don’t ask for something, you might get it. Former Democratic Senate Majority Leader Harry Reid was oh so clever when he did away with the judicial filibuster back in 2013 so he could confirm Obama judges. Well, now Republican Senate Majority Leader Mitch McConnell is using that very power to load the courts with Trump judges.
If the Democratic attorneys general had wanted to do something worthwhile in this suit, they would have attacked the constitutionality of the president’s emergency powers as expressed in the 1976 law. An originalist reading of the constitution would never allow a president to use emergency powers to ban Sierra Leone diamonds or deal with conflicts in Côte d’Ivoire.
It would be nice if the Supreme Court used this case to rein in this unconstitutional use of presidential emergency powers, but that would mean going against the bases of both political parties, so don’t count on it.