Sunday, January 27, 2019

Schrödinger's Wall

by Michael C. Dorf

President Trump's capitulation last week to the Democrats' plan to reopen the government for three weeks while members of Congress of both parties (and presumably representatives of the president) negotiate allows for only two realistic options: (1) An agreement that permits Trump to claim that some amount of money has been appropriated for a "wall" while also permitting Democrats to claim that no money has been appropriated for a "wall"; or (2) no agreement on Trump's wall, a long-term spending bill that Trump signs, and a Trump declaration (over Democratic objections) of a national emergency that enables him to shift money from other appropriations to wall funding.

Despite Trump's initial statement that failure to reach a deal that includes wall funding could lead to shutting down the government again, I regard that option as essentially off the table. The longest-ever shutdown gave Trump no leverage and undercut his already-poor polling. Mitch McConnell and Trump's own advisers will explain to him in the strongest possible terms that a second shutdown would be politically catastrophic. Although I do not entirely discount the possibility that Trump would do something politically suicidal to appease Ann Coulter et al, I suspect that Trump will heed a warning from McConnell, House minority leader Kevin McCarthy, and others that a second shutdown could result in bipartisan legislation reopening the government and the override of a Trump veto.

In saying that a second shutdown is highly unlikely, I do not mean to criticize the federal workers who remain very concerned about that possibility. In light of their recent trauma, they are acting prudently by making plans based on the assumption that there will be another shutdown. That said, I'll focus here on two scenarios: (1) A compromise versus (2) no deal and a national emergency declaration.

Whatever else a compromise deal might include, it must be sufficiently subtle to allow Trump to call it a wall and for congressional Democrats to characterize it as something other than a wall. Trump needs to be able to call it a wall, because wall funding seems to be the make-or-break issue for the Coulter wing of his supporters, and he cares more about their support than just about anything. Speaker Pelosi, having called the wall "immoral" and having repeatedly stated that she will not fund a wall, needs to be able to deny that any compromise legislation funds a wall.

Is it possible for Congress to enact legislation that both funds and doesn't fund a wall? Can there be a Schrödinger's Wall?

Of course. Consider the "separation barrier" that Israel erected nearly 16 years ago. Much of the disagreement over the structure (which is concrete in some places, metal in others) concerns its function: most Israelis see it as combating terrorism; most Palestinians see it as an effort to annex their land and underscore their second-class status. But there is also a semantic disagreement. Israeli officials call it an "envelope," "security barrier," "separation fence," or any number of other names, but not a "wall"--which is what Palestinians call it. Notably, Trump, in this matter as in all things related to the Israel/Palestine conflict, fully adopts the Israeli government's perspective, except that he calls the structure a wall, citing it as evidence of the efficacy of border walls.

There are obviously important differences between the Israel/Palestine and US/Mexico contexts. I raise the former here only for the limited purpose of illustrating that some people can call something a wall while others call it something else. It is relatively simple to imagine statutory language that finesses the point. For example, a law that contains funding for various immigration-related measures -- including technology, hiring more immigration judges, more border agents, improved temporary housing for asylum seekers, etc. -- could also include as one element something like "physical barriers where appropriate." Trump would then claim to have secured wall funding; Pelosi would deny that it had been provided; and everyone could call it a day.

Thus, semantics need not be a sticking point. The bigger question is whether some sort of deal is in each side's interest. The answer is not entirely clear. From the Democratic side, it would seem to depend on whether Trump plans to proceed with his national emergency alternative if no deal is reached, and if so, whether that would be delayed in or rejected by the courts. If Pelosi et al think that the national emergency route is credible, then they have good reason to strike a deal for DACA extensions (or ideally, something more permanent for DREAMers) and TPS renewals for the people whom Trump has rendered vulnerable. Such a deal might not be available, of course, as Stephen Miller might insist on including poison pills, but if Trump were to agree to sign a bill that included actual net benefits for undocumented and other immigrants, that would seem better for Democrats than having Trump begin construction of a wall via emergency powers without such benefits.

For Trump, the calculation ought to be roughly the mirror image. If he thinks he can get away with declaring a national emergency and building a wall, and if he also thinks that his most rabid anti-immigrant supporters would be much happier with that outcome than with a compromise that they will characterize as including "amnesty," then Trump will not make a deal. His motivation for compromise would come from: (a) uncertainty about the legality and thus fate of an emergency declaration; (b) uneasiness among many Republicans about the precedent that would be set by a president's invocation of a bogus national emergency; and possibly (c) his (wholly unwarranted but nonetheless strong) sense of himself as a master deal-maker.

Putting both sides of that equation into the balance, it seems that a deal is most likely if we think that the national emergency route is uncertain. The possibility that it would work brings Democrats to the table; the possibility that it would not work brings Trump and the Republicans to the table. My own very tentative assessment is that there is such sufficient uncertainty. Accordingly, if Trump were a normal politician, I would put the likelihood of a deal that trades DACA and TPS benefits for funding for Schrödinger's Wall pretty high. But of course if Trump were a normal politician, we wouldn't find ourselves where we currently are. Thus, I make no ultimate prediction.


David Ricardo said...

Stein's Law: If something cannot continue it will not continue. A second shutdown would end in about 10 minutes as a small fraction of air traffic controllers would call in sick and the stranding of air travelers in La Guardia for few hours would make more than a 10 minutes shutdown politically non-viable.

So we are left with Schrodinger's Wall (which is a great term creation!) or the non-emergency emergency. One hopes of course for the Emergency route as it will settle some legal issues that need settling and expose the hypocrisy of the conservatives who oppose centralized power in theory but support it when it serves their purposes.

Shag from Brookline said...

A wall by any other name fails Trump's political olfactory test, as recently described by Ann Coulter on Bill Maher's show last Friday, when she confessed to her stupidity regarding Trump. I noted a recent item that the RNC will go all in for Trump for 2020 to keep GOP challengers away. And Trump will continue his wailing about his wall. Meantime, Trump puts America's national security at risk globally, with truly national emergencies far from the border with Mexico.

Shag from Brookline said...

I'm a bit leery of David's suggestion of settling national emergency issues. Over the weekend I read John Fabian Witt's review/essay of Richard Brookhiser's new bio of CJ John Marshal at The New Republicl. Witt critiques quite a bit of Marshall's role on the Court, not in sync with Brookhiser's favorable views of Marshall. Here's the closing paragraph:

"Marshall’s ability to carry out the Federalist agenda for a generation after the party’s decisive defeat at the
polls stands as a warning for what we may expect to see in our own time. Accounts of his life that downplay
his politics make it harder to grasp this key point. Worse, the conventional story of Marshall encourages a
dangerous cycle of thinking about American law. Unfounded hopes for the court’s ostensibly apolitical
ideals produce undue disillusionment with the court’s political realities. The truth is that law is not
independent of party. It never has been. Law is not reducible to party, either. But now more than ever we
need a realistic account of how our courts work, one that can recognize the law’s long-standing and durable
interconnections with the world of the partisan operative."

Considering today's SCOTUS, should we fear how it might address national emergency what with the influence of The Federalist Society in in judicial nominations?

Eric's recent posts on the Court came to mind as I read Witt's review/essay. Maybe Eric might post on it.

David Ricardo said...

I would like to hear more about the risks or issues with the Emergency issue. It is not clear that the centralization/consolidation of executive power since the end of WWII has been beneficial. Vietnam and Iraq are just two examples of the calamity from unrestrained Presidential actions. One can argue that endless war has been the result.

I would also like to hear Mr. Dorf and Mr. Segall opine on how they think Justice Scalia would have ruled on the use of an Emergency Declaration to shift Article I's power of the purse from the Congress to the Executive. A true conservative would strongly limit such a power. A true Originalist would strongly limit such a power. A hyper partisan Justice, which is how many of us view Scalia (and Thomas and Alito) would side with a President Trump and side against a Democratic President. What sayith the experts here?

Marty Lederman said...

Someone should simply offer Trump the opportunity to play Snout the Tinker in A Midsummer Night's Dream (as I did in middle school!). Then we can, in Bottom's words, "let him have some plaster, or some loam, or some rough-cast about him, to signify wall." He can even use his fingers to represent a crack into which lovers can whisper. And then, when the play-within-a-play is nearly finished, he can recite the memorable lines:

"Thus have I, Wall, my part discharged so;
And, being done, thus Wall away doth go."

Joe said...

The changing nature of the "wall" has developed into talk of "smart" walls which at some point might eventually not even include an actual physical wall ... if things continue to develop.

I'm not sure we need another Marshall biography (other chief justices probably deserve more attention, including Taney, given the breadth of material we already have on JM ... though perhaps this one will cover his slave owning more than others -- see Paul Finkelman's book on Marshall/Story/Taney). But, yes, a key aspect of his importance was his choices.

The U.S. Supreme Court had a smaller docket, their jurisdiction was significantly narrower and they had much less ability to refuse cases in his days. Thus, the 19th Century included the Court handling many rather mundane cases. But, it still fails many of the criteria of Eric Segall's "court" definition. I think it's a court but John Marshall does provide an understanding of how OUR system operates.

A lesson to apply to today's Roberts Court, John Roberts just celebrating a birthday.

Shag from Brookline said...

We probably did not need this bio of Marshall, but its author, a conservative, wanted to praise Marshall. But Prof. Witt's review/essay was needed to put Marshall into context with his politics in play on the Court in its early days, with a sort of comparative to today.

Joe said...

Witt's "Lincoln's Code: The Laws of War in American History" was a good book.

I did not read it but his "Patriots and Cosmopolitans: Hidden Histories of American Law" "shows how law and constitutionalism have powerfully shaped and been shaped by the experience of nationhood at key moments in American history."

I welcome his comments. The author gets to write what publishers take, of course.

Michael C. Dorf said...

W/r/t the emergency question and Justice Scalia as raised by David Ricardo: Trump has occasionally suggested that he has inherent authority to declare a national emergency to build a wall. That strikes me as dangerous but also hyperbolic. To the extent that the administration has competent lawyers still working for it, they will draft a declaration that relies entirely on power delegated by Congress. Justice Scalia would have treated the matter as one of statutory interpretation, as will all of the current justices, should the issue come before them. I cannot see any of the current justices (or any who has served in recent memory) willing to say that a president could, in the absence of congressional authorization, simply shift funds appropriated by Congress for one set of projects to another on the ground that an "emergency" justifies doing so. Thus, the question--assuming a ripe controversy, jurisdiction, a cause of action, and the other requisites of a justiciable case--is sub-constitutional.

David Ricardo said...

The Atlantic has an article that goes through some of the statutes on a Emergency and what has happened under the various Emergencies that have been declared.

The historical examples in the article are interesting in that they involve actions by the executive branch to limit or prohibit private action that would otherwise be allowed, on the basis that there is a national emergency. There does not seem to be any example where the issue was purely appropriations of funds. Mr. Dorf appears to suggest that there is no Constitutional question here, only one of statutory interpretation but that does not seem to be the case. In fact, it would seem there are two question.

1. Has Congress in the various statutes actually and specificaully given the executive branch the limited or unlimited authority to shift funds appropriated by Congress under a National Emergency?


2. If Congress has done so, is that Consitutional in that Congress is delegating to the executive branch an authority that is specifically granted to Congress with no Constitutional language allowing Congress to delegate it to another branch? If so, what other provisions of the Constitution has the Congress ceded or can cede to the executive branch in the event of a national emergency? All of them? If not all of them, how is one to delineate between which powers can be ceded and which cannot? It certainly seems, at least de facto, that the Congress has ceded the power to declare war to the executive office.

The first question would seem to be the one of statutory interpretation that Mr. Dorf refers to, the second would seem to be one of a previously unaddressed Constitutional interpretation, and that is the question all of us wonder where the Court, particularly the originalists and the conservatives and the narrow interpreters would come down on.

Given the political biases of the Court it is only partial sarcasm to suggest that a decision would be that it's okay for a Republican President to do so, but not a Democratic one.