The dispute over border security funding, which partially closed the government before Christmas, has officially become the longest shutdown in history. And yet, President Trump and the Democrat leadership in Congress are no closer to a solution that will end the standoff.
Both sides have arguments that are correct.
Democrats are right in pointing out that if Wall funding was a priority, the GOP should have resolved it when Republicans held united control of government. Looking at the results from the midterms, the forty congressional districts that flipped to the Democrats in 2018 were clearly unpersuaded by the President’s “closing argument” that border security was the most important reason to keep the GOP in charge.
At the same time, Trump and Republicans are correct in stating that without a necessarily bi-partisan, 60 vote majority, Wall funding has not been possible in the Senate, and that a physical barrier – at least in certain places, is essential to stem continued illegal immigration, drug smuggling, and most insidious, human trafficking.
But both sides are also wrong.
The President’s myopic focus on the Wall as a panacea for all border/immigration related issues is simplistic and sure to disappoint. Despite the extraordinary efforts POTUS has gone to in order to secure $5.7 billion for a section of border Wall, it is at best a down payment on what would be necessary for a truly secure border.
Democrats, for their part, have become irrational about the “symbolism” of a physical barrier in any manner, and reject any funding for barrier structures that even border security experts would support as prudent. This is compounded by the hypocrisy of many sitting Senate Democrats, including Schumer, who only six years ago supported an immigration bill that would have provided in excess of $40 billion to fund border security, including a wall.
Of course there is all occurs against the backdrop of politics.
In December, as it appeared that a Continuing Resolution (CR) would avert a government shutdown, but with no Wall funding, At that time, POTUS was reminded by nationally syndicated talk radio, which animates much of his baes, that such a move would be a “surrender.” The searing criticism prompted one of the most remarkable about-faces in recent history, as Trump abandoned the CR and insisted that there would be no deal without Wall funding. That impulsive reaction failed to recognize the losing political position that President was creating.
While it’s always wise to keep an eye on Chuck Schumer, who lives for the deal, there was no way that Nancy Pelosi could agree to Wall funding. The presumptive Speaker, struggling to win over a majority of her new, younger, and much more progressive caucus, could hardly have her first act result in a compromise that involved funding the “despised” Wall.
Consider that even in standing firm against Trump, when the final vote for Speaker was concluded in early January, Pelosi only eked out a 2 vote margin for victory. 15 members of her caucus did not support her; a rare public sign of defiance for a new, Democrat House majority.
Worse from Trump and Republicans, the political trap that POTUS set for himself made time his enemy.
The longer the shutdown continues, the more the funding freeze will affect average Americans. The Trump administration has already stretched the law beyond the breaking point in attempting to ameliorate the impact of the shutdown, even ordering furloughed IRS employees to work without pay to process tax refunds. However, without reopening the government, Americans will begin to feel the pain, at the airport with TSA agents and air traffic controllers calling in sick, and eventually, to low income Americans, as food stamps funding runs out in February.
House Republicans, fresh from an election shellacking last year, are in no mood to be on record opposing Republican-written appropriations bills to open government agencies unrelated to border security. In the Senate, Mitch McConnell needs to worry about the seven Republicans who will face tough re-election fights in 2020, where the net loss of four means an end to GOP control. Cracks in GOP solidarity are real, and will become more pronounced the longer the shutdown continues without an exit ramp.
This suits Democrat leaders just fine, as the Party and their activists have been aching to stick it to Trump since Election Day 2016. This situation is tailor made for an epic political humiliation for the President.
Without any political incentive to compromise, the options have grown more extreme. The Trump administration is actively considering the use of authority under the National Emergencies Act to bypass Congress and fund the Wall from previously appropriated (but unobligated) funds.
While such a move could relieve the immediate political pressure on Trump and Republicans, allowing the government to reopen, it also poses grave risks.
Simply stated, while than language of the Act is sufficiently ambiguous to permit Wall funding without congressional approval, it is not clear at all that this use was the intention of the legislation when passed in 1976. A national emergency declaration would almost certainly be challenged in court, likely shutting down any meaningful progress to build the Wall before construction was even started. Instead of relieving pressure, the emergency declaration could double down on it.
On his show Thursday, one of the architects of the shutdown, Rush Limbaugh, suggested that if an appellate court placed an injunction on Trump’s decision, the President would be left with no alternative but to overrule the courts and proceed. This would immediately catalyze a constitutional crisis that could only be resolved by SCOTUS, where an adverse ruling could become the grounds for impeachment.
These immediate issues do not include the longer term threat. In exercising this authority in contravention of Congress Trump would be creating a most dangerous precedent, where a future Democrat president would use Trump’s decision to justify action on a priority that Progressives believe is a “national emergency,” such as climate change.
Remember Harry Reid using the “nuclear option” to get Obama appointees and appellate judges through the Senate on a simple majority vote? That decision led directly to Republicans ending the cloture requirement for SCOTUS nominees when they held the Senate majority with a GOP president. Everyone knows Gorsuch and Kavanaugh. Who remembers the nominees that Reid changed the rules to get through? The same is true with a national emergency.
Ultimately the “cost-benefit” of all of these steps must be weighed by this single most important fact that has not been discussed: the actions of one Congress or president are not binding on the next if there is a new majority to change them.
As a practical matter, any agreement that may be reached, or unilateral presidential action undertaken, is only good as long as the GOP holds the presidency and at least one chamber of Congress. If the Democrats were to sweep the 2020 elections, President Kamala Harris could be at the controls of the wrecking ball that destroys any Wall that Trump builds. Indeed it is the very uncertainty about the political future that keeps both sides from compromising, fearing that it will all be undone by future leaders of the opposing political party.
The solution, the adult solution, is a constitutional amendment. The advantages are real and tangible.
In an amendment, both sides are free to put their cards on the table. Once ratified, the amendment is binding on all future Presidents and Congresses. Concern about future political alignments changing the deal are rendered virtually moot. Only a new constitutional amendment can undo an existing amendment.
This path deserves a second look in part because the amendments process has gotten a bad rap. In the 20th century, amendments to the Constitution were routine, and normally took between 12-18 months. The 26th amendment, lowering the voting age to 18, was ratified in 100 days.
Getting the amendment off the ground in Congress would not be futile if the amendment had the buy-in from both GOP and Democrat leaders. POTUS would ultimately only need 37% of House Democrats and 30% of Senate Democrats to vote yes if he could hold the GOP together.
The outlines of an amendment are clear from the broad middle of American public opinion on immigration.
Americans overwhelmingly support legal immigration and are deeply opposed to illegal immigration. Citizens want effective and tangible border security, including a physical barrier if it’s needed, to combat cartels, gangs, drug flow illegals and trafficking.
Americans overwhelmingly support giving DACA recipients status/citizenship, and by smaller majorities, creating a path to legal status for illegals who have lived here for years. A majority believe that this change in status must come with significant strings, so that law breaking is not rewarded. Conditions include a clean criminal record, fines, and language proficiency, among other criteria that can be negotiated.
In addition, an amendment could work out difficult issues such as asylum and refugee status, end chain-migration and refocus US immigration policy to prioritize work skills over familial relationships. Companion legislation could provide sufficient funds to truly modernize the infrastructure and technology for ICE.
As in previous immigration reform efforts in the 20th century, it would be prudent to pause immigration for a certain period of years to allow the new body of legal residents to assimilate into American culture.
In short, an amendment would resolve all the components of the current immigration debate, permanently.
There are bitter pills here for immigration hardliners. Trump promised to deport the estimated 12 million illegals currently residing in the US, not grant them legal status.
But the reality is that mass deportation will simply never occur. Finding a path to bring these individuals into mainstream society, while ending the continuing political amnesties that created the illegal influx in the first place, is a hard, but ultimately fair trade.
While the GOP will grumble loudly, Democrats will have equal amounts of heartburn.
For Democrat “true believers” on the far left, true progress toward social justice is only possible by toppling the “ruling class,” by creating a non-white demographic majority in the US.
In this narrative, there is no greater threat to the future of the Progressive agenda than actual border control and a restoration of a common-sense legal immigration system. Indeed, open borders are the single biggest tool for Progressives to accelerate a demographic trend, created under existing immigration laws, that will have America as a “minority-majority” country on or before 2050.
Of the many arguments against this path, consideration that an amendment would be a “sell out” to the Democrat agenda is patently false.
Once an amendment got out of Congress, Trump could then call a meeting of the nation’s governors, requesting they put the amendment to a vote at the earliest possible time.
It takes 34 states in agreement to amend the Constitution. Today, Republicans control the governorship and both houses of the legislature in 23 states, and have united legislative control, with Democrat governors, in seven more. That brings the total to 30. Democrats only need to come up with four states to make it real. Nevada, New Mexico and Colorado, and Maine are obvious choices.
A ratified amendment on immigration would be truly historic, ending 50 years of increasingly divisive debate about the very nature of America. The political energies dedicated to this issue could be profitably refocused on equally compelling public policy problems such as the national debt, entitlement reform, health care and education. Washington could become a place where problems are actually solved instead of being endlessly fought.
Nothing worth doing is easy. Who’s willing to try?