Report: Trump moving away from emergency declaration at border, might use "legal executive authority" instead

I haven’t heard of any executive authority that might allow him to re-appropriate Pentagon funding for the wall apart from an emergency declaration — except, I guess, Ann Coulter’s suggestion that Trump can claim inherent authority as commander-in-chief to order the military to protect the country. That seems more dubious than an emergency decree at first blush, though. If the Supreme Court rubber-stamped that theory, it would move the power of the purse from Congress to the president so long as there’s some national-security angle to what he wants to do.

Any legal eagles reading are invited to chime in: What sort of “legal executive authority” are they imagining here?

Though the White House has worked to prepare an emergency declaration invoking the president’s sweeping executive powers, several West Wing aides have warned that invoking it would alienate some conservatives who have otherwise been loyal to the White House…

A more modest executive order has been under review by the White House counsel’s office for weeks, which Mulvaney has termed “legal executive authority.” Both choices are likely to provide much less money than what the president has been demanding for a border wall

Privately, Mulvaney and other senior officials, including White House policy adviser Jared Kushner, have been warning Trump about the drawbacks of taking executive action or employing emergency powers. The president’s chief of staff has described an emergency declaration as something he hopes to avoid due to expected legal backlash, according to six people familiar with his thinking.

An emergency declaration would be a bad precedent, but “legal executive authority” to achieve the same sort of power grab over funding would risk setting a similar one. What do you gain with the latter? I assume the authority in question has to do specifically with immigration law; that way, if President Kamala Harris tries to assert “legal executive authority” in the name of gun control in 2021, righties have an argument that Trump’s move to build the wall was a special case that involved special authority related to the border.

Either way, though, he’s going to be sued. If he’s serious about winning this court fight, he should go all-in and play the best hand he has. That’s an emergency declaration. Why pull your punches if you’re intent on brawling?

Politico claims that Trump is now “cornered” in this standoff because he’s run out of options. He won’t get wall money from Congress: If he’s lucky he’ll get some money for “fencing” but it ain’t gonna be $5.7 billion. And he won’t get wall money from the Pentagon if in fact he’s ruled out declaring an emergency. I don’t buy that he’s ruled it out, though, as that would position him for a much more meaningful defeat than his decision to end the shutdown a few weeks ago was. His cheering section in righty media assured anxious fans at the time that that was just stage one of the fight, that the “emergency” card would be played in good time unless Pelosi finally gave in and handed him a check for the wall. To have Trump suddenly decide that there’s no emergency card after all would be good for the country but close to total surrender. How would Hannity et al. spin it?

The question is this simple: Does Trump, who ran for president as a strongman, care more about preserving the constitutional principle that the legislature controls funding for government priorities or does he care more about saving face on his signature immigration campaign promise? The answer is obvious. I could understand him passing on an emergency decree if McConnell convinced him that there are 67 votes in the Senate to overrule that decree, as that would be a grave political humiliation even though it’s Senate Republicans, not Trump himself, who would feel the wrath of right-wing populists afterward. But no one believes there are 67 votes. There’s a majority in favor of rescinding Trump’s decree but he can veto their bill and declare anyone who voted for it from either party an establishment cuck. The subsequent veto override attempt will fail and the court battle will begin. And the politics of that court battle are okay for Trump no matter what happens. If he wins he gets the wall, if he loses he can say he fought all the way and the RINO judges took his victory away. The president’s baseline consideration in all things seems to be, “What’s best for Trump?” At this point, an emergency decree and a court fight are what’s best for him. So that’s what’s still likely to happen.

Either way, Pelosi’s prediction that there won’t be another shutdown if there’s no deal when funding runs out next week seems solid. Now, exit question: Where on earth did this come from?

Trump raised eyebrows in his State of the Union speech Tuesday when he said he wanted people “to come into our country in the largest numbers ever, but they have to come in legally.” His policy positions to date do not reflect that wish.

Asked Wednesday during a meeting with regional reporters whether the line represented a change in policy, Trump said it did.

That’s according to a transcript tweeted by a reporter from The Advocate newspaper in which Trump is quoted saying: “I need more people coming in because we need people to run the factories and plants and companies that are moving back in.”

The economy is very, very good, but even a very, very good economy includes many hundreds of thousands of unemployed Americans. He’s dangerously close here to the idea that we need immigrants to do the jobs Americans won’t do. (Which he does believe in certain specific situations, by the way.) But never mind that. Since when is POTUS a fan of more legal immigration? The main reason he didn’t get his wall money in a straight-up trade for amnesty for DREAMers last year is because he insisted that the deal include Democratic support for new limits on legal immigration in the RAISE Act. Now he wants the “largest numbers ever” of legal immigrants. See why it’s so hard for both parties in Congress to negotiate with him? They never know which Trump they’re going to get.

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David Strom 6:31 PM on October 05, 2022