Introduction
There is no doubt that the border wall is the centrepiece of the border security policy of the Trump Administration. Every Trump rally held across the country had people chanting “build the wall” without fail since Trump clinched the Republican Nomination in 2016 (Kaneally 2018). Now, after a bruising partial government shutdown and a national emergency declaration widely challenged in Federal courts around the country, we look at some of the options left for the Trump Administration to advance its border security agenda beyond the current state of stagnation (Baker, 2019). The path forward is narrow but clear: if a definitive legislative win on the border wall is still the target, the President’s message needs further moderation to appeal to a larger audience, and more concessions, despite the President’s reluctance, need to be made to the Democrats in Congress.
Overview of Current Policy Objectives
According to the White House website, “To restore the rule of law and secure our border, President Trump is committed to constructing a border wall and ensuring the swift removal of unlawful entrants.” (The White House, 2019)
This statement, regardless of any value judgement, is a concise summary of President Trump’s dual policy objectives regarding border security. The first is the border wall or, in more recent White House statements, a physical barrier along the US-Mexican border. The second would be to strengthen the Homeland Security apparatus as a method of deterrence against illegal migrants crossing the border.
The second objective of deterrence can mostly be achieved through Executive measures. The apprehension and deportation of illegal border crossers are subject to the prosecutorial discretion of the Department of Justice and its internal guidelines, pursuant to Title 8 US Code Section 1325 on improper entry (Legal Information Institute 2019). The Department of Homeland Security executes those decisions and direction through the Customs and Border Protection and US Citizenship and Immigration Services. Hence, this is the area where the Trump Administration has navigated with relative ease. They were able to deny asylum seeker status to illegal border crossers, incarcerate and prosecute most of those caught to the farthest extent of criminal penalty, and deliberately slow down the processing of asylum-seeking requests at the legal ports of entry (Lind 2019). Little obstacle was in place other than the public outcry over family separation and all done with the explicit intent of deterrence against illegal border crossers, as described by former Attorney General Jeff Sessions (Lind 2019).
The first objective of the border wall is much more elusive. Funding is required to build the border wall and cost is quite substantial. The White House Framework on Immigration Reform & Border Security puts the estimated cost at US$25 billion (The White House 2018). Some studies show significantly higher costs. A Massachusetts Institute of Technology study puts the estimate at around US$40 billion with hundreds of millions of dollars of maintenance yet to be accounted for (Kakaes 2019). All the spending requires congressional approval, and the item is often passed in the form of an omnibus appropriations bill with budgetary implications in other sectors of government, giving Democrats more leverage to oppose the measure and even threaten to filibuster in the Senate altogether.
Resistance and Opposition
Speaking of Democrats, President Trump’s border wall funding suffered a great deal of misfortune in Congress. For the first 2 years of his presidency, The Senate Democrats were successful in passing bipartisan omnibus appropriation resolutions, making sure that any additional funding for a physical barrier along the Mexican border would it go towards renovating or maintaining existing barriers and building existing models of barriers or they shall filibuster it (Congress.gov 2017).
After the midterm election of 2018, the House Democrats were able to recapture the majority. Sensing a fleeting opportunity for Congress to pass any meaningful spending for the border wall, the president then threatened to veto any spending bills that do not include $5 billion and later $5.8 billion in border wall funding. The entire tug of war resulted in the longest government shutdown in recent US history, Tens of thousands of furloughed federal government employees not getting their regular paychecks and a bruising defeat in the arena of public opinion for the president with no prospect of border wall funding on the horizon just yet (Lu 2019).
Congressional opposition and hostility towards the president’s proposal escalated into bipartisan territory after the president invoked the National Emergency Act to reallocate funding from military construction. In defence of the Article I power over government spending, also known as the power of the purse, widespread discontent amongst Senate Republicans has been especially palpable due to the fact that the president invoked an act of Congress to allocate funding for a project that Congress explicitly vote against (Baker 2019).
Constitutional scholars and the legal community widely consider the national emergency declaration to be a gross example of executive overreach (Baker 2019). And even if the President’s legal manoeuvre turns out to be triumphant, the minuscule $3 Billion from military construction projects has been allocated is not sufficient (Paris 2019). And any hopes for re-purposing Homeland Security funding for border wall construction will prove to be futile in the face of budgetary earmarks.
Moving past Congress and the Federal Courts, some of the staunchest opposition may come from the states and localities, especially those along the Mexican border. The border wall’s deep unpopularity along the border can be reflected in their congressional representation. All House districts along the border, except Texas’ 23rd Congressional District, are represented by Democrats. And all of those representatives, including Republican Rep. Will Hurd of Texas 23 oppose the President’s proposition (Congress.gov, 2019). Politically, pursuing the subject can also be risky business for Republicans locally, as two of the four border states are Texas and Arizona, both slowly slipping from Republican control into battleground states status.
The legal challenges coming from the locales differ significantly from those seen in White House-Congress disputes. The grounds opposing the wall cover lack of due process in suspending environmental assessment, abuse of eminent domain to expropriate private land without proper proof of public interest, and many more (LA Times 2019).
The biggest problem out of all of them is probably the fact that border wall, on a national level, is simply not popular. A Gallup poll conducted on the February the fourth 2019 shows that 60% of all Americans oppose expanding the construction of the walls along the US Mexico border with 39% strongly oppose (Gallup Inc. 2019). It is not helping the chances of Republicans seeking to control Congress or his own chances of winning re-election. Fox News Voter Analysis points out that states with more than 400 electoral votes have a majority of voters opposing the construction of the border wall (Fox News, 2018). 270 are needed for re-election.
The definitive framing of the issue is very salient in turning off the appetite for either side to come to a compromise. The Upshot Poll by the New York Times identifies 89% of voters’ opinions on the President and the wall are consistent, reaffirming the popular theory that the wall is simply a reinforcing strategy to secure his base (Cohn 2019). To many on both the left and right, the constant and incessant mentioning of the border wall made it an emblem of the Trump Presidency. To those on the right, the wall often represents security, law & order and America First. To those on the left, the wall is often seen as a symbol for American isolationism and dog-whistle politics. Both sides end up more intransigent as the policy debate is hijacked by differences in values.
The Path Forward
Regardless of the final judicial decision on the merits and demerits of President Trump’s national emergency declaration on the southern border, bipartisan congressional support is pivotal to the success of the border wall. Unless, of course, the President is willing to drain even more money from the Pentagon’s construction budget, which is directly contradictory to the President’s other major campaign promise: more support for the US military (The White House 2019).
The first step towards doing that would be to soften the message for the proposition to be more tolerable to the political centre. White House communications have apparently already been working to do exactly that, ditching some of the most outlandish statements made in the past and adopting some more pedantic policy talk. They now also try to avoid the word “wall” to circumvent its negative undertone and opt for the word “barrier” instead, an umbrella term for any continuous physical obstacle (Quealy, 2019).
Paying lip service may not be enough. The Administration needs to make concessions that it may not be ready to make. After all, the issue of the border wall is less about funding and more about power brokering. $5.8 billion in initial funding is almost negligible when compared to the astronomical $4.11 trillion annual federal spending (USAspending.gov 2019). Congressional Democrats may be adamant about how cost-ineffective the border wall is, as alleged by the House Speaker Nancy Pelosi, they may be willing to tolerate it as long as they get to advance some of their own agenda (C-SPAN 2019).
We have the perfect example of such bipartisan power brokering in the past. Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 was a major immigration reform proposal that garnered the support of all 54 Democratic Caucus senators and 14 Republicans. It included $1.5 billion for a “Southern Border Fencing Strategy” that would introduce more physical barriers along the Southern border. Democrats in the Senate voted unanimously for the bill anyway because they had their eyes on the real prize: a pathway to citizenship for illegal immigrants living and working in the United States. $1.5 billion was only a small price to pay even for Democratic senators not in favour of more fencing (Schumer 2014).
Therefore, it is much easier for the Trump Administration to pass border wall funding through an omnibus bill with components of immigration reform, than to force Congress to pass the funding along with other unrelated appropriation resolutions. According to Gallup, 9 out of 10 Americans wish to see permanent protection for Deferred Action for Childhood Arrivals (DACA) recipients, and 81% of Americans want a pathway to citizenship for certain illegal immigrants (Gallup Inc. 2019). These are both legislative goals that the Congressional Democrats would trade for. It is hard to predict the impact these concessions would have on Trump’s level of support amongst his core base, but such compromises can prove to be an electorally beneficial move of outreach.
Conclusion
The Trump Administration is in a very different political reality today than two years ago. It is stuck both in a system that requires consensus to work and a political environment of heightened division. The latest legal drama surrounding the emergency declaration is inconsequential to the long-term vision of the border wall. And unlike other parts of President Trump’s border security policy, any hopes for the border wall to come to fruition hinge on their willingness to both tone down the rhetoric and reach across the aisle.
Works Cited
Kaneally, Meghan. “Cries to Build the Wall Are More than Campaign Chants for
Arizonans.”ABC News, ABC News Network, 28 Aug. 2018, abcnews.go.com/Politics/cries
build-wallcampaign-chants-arizonans/story?id=57456990..
Baker, Peter. “Trump Declares a National Emergency and Provokes a Constitutional Clash.” The New York Times, The New York Times, 15 Feb. 2019, www.nytimes.com/2019/02/15/us/politics/national-emergency-trump.html.
“Immigration.” The White House, The United States Government,
www.whitehouse.gov/issues/immigration/.
Article 2 section 17
“8 U.S. Code § 1325 – Improper Entry by Alien.” Legal Information Institute, Legal Information Institute, www.law.cornell.edu/uscode/text/8/1325.
“White House Framework on Immigration Reform & Border Security.” The White House, The United States Government, 2018, www.whitehouse.gov/briefings-statements/white-house-framework-immigration-reform-bord
Kakaes, Konstantin. “Play with the Numbers Yourself to See Why Trump Is Wrong about the Cost of a Border Wall.” MIT Technology Review, MIT Technology Review, 20 Feb. 2019, www.technologyreview.com/s/602494/bad-math-props-up-trumps-border-wall/.
“H.R.3355 – 115th Congress (2017-2018): Department of Homeland Security Appropriations Act, 2018.” Congress.gov, 21 July 2017, www.congress.gov/bill/115th-congress/house-bill/3355.
Lu, Denise, and Anjali Singhvi. “Government Shutdown Timeline: See How the Effects Are Piling Up.” The New York Times, The New York Times, 9 Jan. 2019, www.nytimes.com/interactive/2019/01/08/us/politics/government-shutdown-calendar.html.
Paris, Francesca. “16 States Sue Over Trump’s National Emergency Declaration.” NPR, NPR, 19 Feb. 2019, www.npr.org/2019/02/18/695821740/16-states-sue-over-trumps-national-emergency-declaration.
“California Loses Border Wall Challenge in Federal Court.” Los Angeles Times, Los Angeles Times, 12 Feb. 2019, www.latimes.com/local/lanow/la-me-ap-california-border-wall-appeals-court-20190212-story.html.
Gallup, Inc. “Solid Majority Still Opposes New Construction on Border Wall.” Gallup.com, 4 Feb. 2019, news.gallup.com/poll/246455/solid-majority-opposes-new-construction-border-wall.aspx.
“Voter Analysis – Fox News Midterms 2018 Americas Election HQ.” Fox News, FOX News Network, www.foxnews.com/midterms-2018/voter-analysis.
Cohn, Nate. “The Wall Is Not Popular. (And Neither Is Trump.).” The New York Times, The New York Times, 12 Jan. 2019, www.nytimes.com/2019/01/12/upshot/trump-border-wall-polls.html.
Quealy, Kevin. “A Fence, Steel Slats or Whatever You Want to Call It: A Detailed Timeline of Trumps Words About the Wall.” The New York Times, The New York Times, 13 Feb. 2019, www.nytimes.com/interactive/2019/02/13/upshot/detailed-timeline-trumps-words-border-wall.html.
House Speaker Nancy Pelosi: Building a Wall Is an Immorality. www.c-span.org/video/?456673-1/house-speaker-nancy-pelosi-building-wall-immorality.
Schumer, Charles E. “S.744 – 113th Congress (2013-2014): Border Security, Economic Opportunity, and Immigration Modernization Act.” Congress.gov, 10 Dec. 2014, www.congress.gov/bill/113th-congress/senate-bill/744.