Trump has the power

The story of the Trump presidency so far is that the guy himself has done a pretty good job, considering how he is a complete outsider and amateur when it comes to so much of it.  But being an outsider, he has really struggled to put together a competent team of people around him.  For example, Deputy A.G. Rod Rosenstein acts more like part of the opposition than the administration.  So the absurd Russia investigation creaks on with no results, while the massive, illegal spying operation on the Trump campaign conducted by Obama's intel people goes hardly remarked on, let alone investigated.

Some parts of Team Trump, however, may be getting the hang of things.  For example, homeland secretary Kirstjen Nielsen's Remain in Mexico Plan could be a tremendous success in eventually fixing our border problems.

The big issue now is funding the long promised border wall, the cause of the current shutdown fight.  Inexplicably, this fight could have been easily won, had Team Trump and Mitch McConnell used the "reconciliation" process this fall to get past the Senate filibuster of appropriations.  Ted Cruz has long argued for this tactic, but I think McConnell didn't want to try it because it meant buying off certain moderate Republicans to get to 50 votes.  In the bigger scheme of things, who cares if Flake or Corker or Murkowski got another pork-barrel project?  Small price to pay for securing the country's borders.

As I have pointed out before, there is already quite a bit of money allocated to at least "upgrading" the fencing on the southern border and construction is proceeding.  What is needed now, though, is to quickly replace the 400 miles or so of the most vulnerable part of the border, where there are just vehicle barriers.

It is unlikely, given their partisan media support, that Democrats in Congress will feel any pressure in the shutdown fight and compromise on anything now.  However, President Trump actually does have the so-called "emergency powers" to build the wall on his own using defense money.  This is explicitly provided for in the laws, not by some general theory of executive power.  For example, 33 USC Sec. 2293 specifically allows the president to declare a national emergency on his own, and then reallocate defense construction money to deal with the emergency.  If the Trump people carefully draw up their emergency declaration to reflect the military nature of the situation, the SCOTUS is in no position to deny it.

Now, for some reason, N.R. writer David French thinks Sec. 2293 can't be used because a "new or expanded border barrier has not been authorized by any lawful process."  Really, what does he think the Secure Fence Act is, if not an "authorization" by the Congress of a border barrier? 

The situation in Arizona is where the issues of the military really come into focus.  Mexico is adjacent to or just beyond the massive Goldwater Air Force Bombing Range.  Illegal aliens have long been making the crossing here because it is wide open, but it is also extremely dangerous, as you would expect.  This is exactly the kind of military-related contingency the law covers.

Also, given the long history of many presidents, from Bush to Obama to Trump, having to send National Guard units to police various parts of the border, there is a well proven need for additional military facilities, including fences and patrol roads.  The argument for the propriety of Sec. 2293 is overwhelming.

Interestingly, even a lot of the legal pundits on the left, having now read the laws, have discovered, to their horror, that the president indeed has enormous emergency powers and are quite angry about it.

Let's hope Team Trump's lawyers are working hard on getting all this straight.  It is likely he will have to concede on the shutdown fight in the next few weeks, but he will have made the point to everyone that he is fighting as hard as he can.  Trump will then be free to turn to the emergency powers he has as president, where he can eventually win the funding fight once and for all.