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.