Pro-Wall Republicans Should Reject Trump’s Emergency

(Bloomberg Opinion) -- On the question of whether the federal government should spend money to augment physical barriers at the border with Mexico, I’m with President Donald Trump.

Yes, there are other, more important steps the government could take to control immigration. Many illegal immigrants came here legally and then stayed after their visas expired. Requiring employers to verify the legal status of new hires would deter them as well as illegal border-crossers. Trump has rarely focused on this issue and placed too much emphasis on “a wall.”

On the other hand, Nancy Pelosi’s contention that “a wall is an immorality” is absurd. We should have limits on immigration, and barriers can help enforce those limits. On both of those common-sense points, Trump is right.

But I agreed with President Barack Obama, too, on whether a lot of illegal immigrants who had put down roots in the U.S. should be allowed to stay legally, and I still objected when he bypassed Congress to advance that policy.

Trump’s declaration of a national emergency to build barriers is also an executive overreach. Congressional Republicans should vote to disapprove it, even if they favor a tougher approach to border security.

Building barriers can’t be justified as an “emergency” measure using any normal sense of the word. Illegal border-crossings are down. The president didn’t stir himself to do much to get funding for a wall until December. When he declared the emergency, he said he didn’t have to do it.

To defend Trump’s action, you’d have to ignore the ordinary meaning of the word and instead construe “emergency” as a legal term of art: Federal law gives the president the power to declare emergencies in order to be able to exercise certain powers, and those emergencies don’t have to match common definitions of the word. Previous presidents have declared emergencies that most Americans barely noticed.

It’s an argument like the one that Obama’s defenders made for him: The president has the legal authority to take this action, at least if you read the statutes just right. These arguments take advantage of the modern habit of treating the Constitution as a purely legal document. But the constitutional problems with these presidents’ actions are not reducible to legal technicalities.

Obama was trying to do something that his predecessor George W. Bush had also sought. Bush had not thought it constitutionally permissible to take unilateral action, and Obama himself denied he had the power before he decided to use it. Obama seized this power because he could not reach an agreement with Congress.

Just so here. Previous emergency declarations have not been used to resolve a political controversy, let alone to allow the executive branch to spend money in a way Congress had considered and decided against. Even if the president has the legal power to take this action, it’s an abuse of that power to exercise it.

Courts are sometimes reluctant to decide whether one branch is abusing power in this fashion, lest they get drawn into an inappropriate policymaking role. It’s a constraint that does not apply to members of Congress. They should vote to disapprove of Trump’s abuse -- especially if they condemned Obama’s previous abuse, as most congressional Republicans did.

To contact the editor responsible for this story: Katy Roberts at kroberts29@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Ramesh Ponnuru is a Bloomberg Opinion columnist. He is a senior editor at National Review, visiting fellow at the American Enterprise Institute and contributor to CBS News.

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