There was an underlying question that nobody really wanted to ask when Nancy Pelosi and the House Democrats stood toe-to-toe with Trump during the shutdown, denying him funds for the wall and correctly guessing that public opinion would fall on their side and mount pressure on the president: Did they actually care about reforming our border security practices, limiting the scope of ICE, and restoring some humanity to the way we treat undocumented immigrants, or was it more about denying Trump a political victory on the one issue that had come to symbolize his entire campaign and presidency?
On Thursday, we got our answer. The majority of Democrats from the Senate and House passed a spending package largely focused on border security that will prevent a second government shutdown, and while it doesn’t technically fund a border wall, here are some things it does do:
—Provides $1.375 billion for 55 miles of steel-post fencing, with a few provisions to give local communities a say in “location and design”
—Provides $564 million “equipment to detect contraband at ports of entry” and $100 million for border surveillance technology.
—May or may not increase the number of ICE detention beds, but definitely doesn’t include any kind of cap, which means they will inevitably increase.
—Provides funding for “600 new customs officers and 200 additional border patrol agents.”
As The Intercept reported, the immigrants rights community sees the deal as a failure on the part of Democrats:
The central problem with the deal, leaders of the immigrant rights community say, is that Democrats, from a position of strength given their control of the House of Representatives, merely entrenched Trump’s immigration policy. The deal, they say, puts a bipartisan stamp of approval on the dark chapter of American history that Trump’s policies have brought upon us.
Here’s Ana María Archila, co-executive director of the Center for Popular Democracy:
I think that the deal essentially accepts Trump’s paradigm that there is a security crisis at the border that needs more investment and enforcement. It displays a level of a lack of moral grounding in some ways. The country now knows what enforcement looks like. It’s ugly. It’s children in cages. It’s families that’ll never see each other again. That’s what this funding will do.”
Greisa Martinez Rosas, deputy executive director of United We Dream, put it more bluntly to The Intercept:
“This was an old-fashioned shakedown — Trump threatened to shut down the government again unless Congress gave him and his deportation force more cash to execute their racist vision of mass deportation, and while Democrats gave him the money, immigrant families will pay the price,” Rosas said.
It should be noted that the spending package is about far more than just border security—it covers nine different federal departments, including the IRS, in funding that will last through September. But border security was the true battleground, and although Trump didn’t quite get his concrete wall, the bill accepts his fundamental premise that we’re in a battle against an invading force at the border, and endorses that philosophy to the tune of $1.7 billion.
“But at least he didn’t get the wall.”
To some, including most Democrats, defeating Trump on this symbolic front is worth the price of conceding on the broader paradigmatic issue of what border security means and how we treat undocumented immigrants. It’s a morally dubious approach, but at the very least, a political compromise of that kind should come with an ironclad guarantee that the other side will hold up their end of the bargain. In other words, that there won’t be a godforsaken wall.
Instead, here’s what happens when you put any faith in Trump or congressional Republicans, the kings of yanking the football away:
Now begins the debate on whether it's truly possible, from a legal standpoint, for Trump to bypass Congress in this manner. See if you recognize the following conditions from countless crises past:
1. Legal scholars disagree, and Trump's people are telling him there's a way while his opponents are dead certain, almost sure, pretty positive, a little confused but ultimately optimistic, that it's against the rules.
2. Democrats are threatening what they could do with the same power, like declaring national emergencies on gun violence or climate change (the horror!), threats that are ultimately meaningless unless there's far more backbone in Congress and/or the oval office in two years.
3. Mitch McConnell privately opposed it in talks with the president, but now publicly supports the move.
4. Senate Republicans like Marco Rubio have made vague noises about thinking it's a step too far, but will, inevitably, fall in line when the move is made.
5. The whole thing might come down to a conservative Supreme Court.
All that's missing is Jeff Flake playing his “Republican renegade” act only to fold like a cheap suit!
Which isn't to say Trump's national emergency gambit is a guaranteed success, but then again, when have they been able to stop him in the past? When have the “rules,” shrouded in uncertainty, successfully limited executive power during Trump's reign?
This evergreen tweet comes to mind:
For the nitty-gritty details (read: speculation) on whether Trump can truly build his wall via national emergency, the Times is probably your best bet. Fair warning, though: It’s a lot of “this is true, but then again, so is this….” As you see:
Legal experts have said Mr. Trump can muster serious arguments that he can declare a national emergency under current law, but it would almost surely prompt a court challenge from critics arguing that he is usurping two centuries of congressional control over spending.
Under Article I of the Constitution, Congress has the power to appropriate funds. “No money shall be drawn from the Treasury, but in consequence of appropriations made by law,” it says.
But Congress has passed laws in the past providing presidents with authority in national emergencies, laws that remain on the books. Indeed, 31 national emergencies declared by Mr. Trump and his predecessors remain active.
It may eventually come down to the Supreme Court, and while they have “shown skepticism” about executive overreach in the past, anyone who takes comfort from the wall issue being decided by John Roberts and Brett Kavanaugh is truly grasping at air. Our best chance is probably Trump’s own incompetence, as Ben Mathis-Lilley put it so perfectly in this Slate headline:
Nation Again Torn Between Freaking Out Over Bad Trump Idea or Staying Calm Because He’ll Be Too Lazy to See It Through
We shouldn’t have needed another reminder of this inescapable fact, but here it is: This is why you don’t negotiate in good faith with Republicans, much less Donald Trump. There is never, ever any moment where a compromise is good enough, or where they won’t bend and break rules to achieve exactly what they wanted in the first place, no matter how ground you concede in the meantime. Democrats showed that they had all the power during the shutdown, and instead of steeling their nerve and forcing real concessions from their opponents on border security and finding a legislative path to treat immigrants as human beings, they took their collective foot off Republican throats and signed a spending package that reinforced the “caravan as invading force” mentality that Trump has worked so hard to ingrain in the American psyche.
All of it, all of it, so that the maniac in the oval office can’t build a concrete wall, which he was never going to happen via Congress in the first place. And now, after the latest great surrender, he might get the damn thing anyway.