Can Trump’s Wall Survive His Fake Emergency?

For a fleeting moment on Friday morning, a wild hope galloped through my mind like a horse fleeing a barn fire. Trump would step to the podium to make his emergency declaration, smirk at the assembled reporters and say, “My fellow Americans, I have never told a joke in my life.” With a sudden howl, he would rip the rubber mask off his head to reveal a man everyone thought was dead. I knew it! It’s Andy Kaufman! Behind him, Mike Pence would tear his mask off to reveal Jerry Lawler, and the two would walk away arm in arm giggling like titmice on a tree bough, having pulled the greatest prank of all time.

If you’re going to cause a constitutional crisis, you may as well make it fun, right?

Nope. When Trump unleashed a disorganized, rambling, snarling, sniff-riddled word cloud on China, Korea, Syria, missiles, Obama, wars, duct tape, “bob” wire, Democrats, singsong Beat poetry, caravans and the stock market while announcing his illegal emergency declaration, it wasn’t fun. It was surreal to the point of brown-acid psychedelia, and it was perfectly terrifying in the main, but it wasn’t fun. In an administration made of low points, Friday’s Rose Garden debacle was a Jules Verne novel on live television. Dead or alive, Andy Kaufman would have been a substantial improvement.

So that happened, as Trump said on Friday, and here we are. Senate Majority Leader Mitch McConnell jettisoned the last lingering threads of his integrity and endorsed the emergency declaration on Thursday afternoon, likely because he’s also getting the shutdown-avoiding border bill he wanted. With McConnell now on board, a majority of the lemmings in his caucus — many of whom are deeply concerned about the precedent being set — will likely fling themselves over the cliff if House Speaker Pelosi, Rep. Alexandria Ocasio-Cortez and Rep. Joaquin Castro force a vote on the declaration, which they are all but certain to do.

It will be a hot political mess for the Republicans, but Trump’s declaration will probably survive a congressional assault. Even if a bill to thwart the declaration manages to pass both chambers, there will almost certainly not be enough Republican votes to override a veto. Thanks to McConnell, a legislative solution to this contra-constitutional fiasco is likely out of reach.

The real fight, therefore, will be in the courts. One of the most significant obstacles Trump’s declaration will face is sure to come from landowners, particularly in Texas. “More than 90 lawsuits involving landowners opposing the federal seizure of their property in South Texas remain open from 2008,” reports Ron Nixon for The New York Times. “The property owners have the support of many Texas politicians in a state where land ownership has an almost mythic resonance, and their opposition to a border wall could delay any construction by years while lawsuits wind through the court system.”

The National Emergencies Act gives a president wide, almost unlimited latitude to declare an emergency. The issue has not come to a final, definitive judicial head because most prior presidents have not abused the power, and those who did, like President Truman, were smacked down hard. Even President Obama’s 2014 emergency declaration on immigration — which both Trump and Vice President Mike Pence vigorously denounced at the time — took a beating in the courts.

The legal question may come down to intent and whether this action was taken in good faith, as Elizabeth Goitein of the Brennan Center for Justice argues in The Washington Post: “With sufficient evidence that Trump is acting in bad faith — that he is abusing the discretion Congress granted him for the purpose of subverting constitutional constraints, including the prohibition on spending funds that Congress has not appropriated — a judge could still find that the emergency declaration is invalid.”

Which brings us back to the Rose Garden, and this all-important exchange between Trump and NBC reporter Peter Alexander:

ALEXANDER: In the past, when President Obama tried to use executive action as it related to immigration, you said, “The whole concept of executive order, it’s not the way the country’s supposed to be run.” You said, “You’re supposed to go through congress and make a deal.” Will you concede that you were unable to make the deal that you had promised in the past, and that the deal you’re ending up with now from congress now is less than what you could have had before a 35-day shutdown?

TRUMP: I went through Congress. I made a deal. I got almost $1.4 billion when I wasn’t supposed to get one dollar, not one dollar, he’s not gonna get one dollar. Well, I got $1.4 billion, but I’m not happy with it. I also got billions and billions of dollars for other things, port of entries, lots of different things, the purchase of drug equipment, more than we were even requesting. In fact, the primary fight was on the wall, everything else we have so much, as I said, I don’t know what to do with it, we have so much money. But on the wall, they skimped, so I did, I was successful in that sense, but I want to do it faster.

I could do the wall over a longer period of time. I didn’t need to do this, but I’d rather do it much faster. And I don’t have to do it for the election, I’ve already done a lot of wall for the election, 2020, and the only reason we’re up here talking about this is because of the election, because they want to try and win an election which it looks like they’re not going to be able to do, and this is one of the ways they think they can possibly win is by obstruction and a lot of other nonsense, and I think that I just want to get it done faster, that’s all.

(Emphasis added)

“I could do the wall over a longer period of time,” he said. “I didn’t need to do this, but I’d rather do it much faster.”

Bad faith, abuse of his discretion, Article I, and never mind the fact that if you wait months to declare an emergency, there is no emergency. Trump himself called the action unnecessary right there on television, and said haste was his only impetus right before declaring that election politics is also a prime motivator. That, right there, feels like the ballgame. When we look back at the crater left by this incredible failure of leadership, we will in all likelihood remember that Trump’s big, beautiful border wall died at its own Rose Garden party because he tried and failed to outsmart a reporter.

It took less than a day for Trump and his emergency declaration to be sued: Citizens for Responsibility and Ethics in Washington (CREW), the ACLU and the state of California are first in line, with more likely to follow. House Judiciary Committee Chairman Nadler sent a letter to Trump announcing the committee’s intention to investigate all facets of the declaration; one Twitter commentator described the letter as “a rough draft of impeachment.”

Everything about this border wall situation — Trump’s extralegal tantrum, the craven capitulation of McConnell and the Republicans, the shameless lies, the howling mobs, all of it — is a disgrace to the nation that will not be easily forgotten. Most disgraceful of all is the idea of the wall itself: a monument to vicious nativism, white nationalism, toxic masculinity and perfect cowardice. It would almost be worth it to build the thing just so we could immediately burn it down and then dance in the firelight to the old Woody Guthrie anthem, “All You Fascists Are Bound to Lose.”

I’d pay for that.