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Matthew Stokes: On walls and national emergencies

By MATTHEW STOKES, Alabama Daily News Columnist

Matthew Stokes

Last weekend was a mixture of relief and despair for many political observers.  For my own part, there was great relief that the Senate – led by Alabama Senator Richard Shelby – had reached an agreement on Homeland Security funding, and that after House approval, another government shutdown would be avoided.  The despair kicked in when it was announced that President Donald Trump would follow through on his threat to declare a national emergency in order to build a wall along the southern border, fulfilling a campaign promise ostensibly designed to ward off illegal immigrants.  While the move has received lukewarm support from Republicans, there is probably enough support to allow the measure to proceed. The response from some Constitutional conservatives, however, has been far less enthusiastic.

Concern over immigration, however broadly defined, was central to Donald Trump’s appeal.  It must be recognized that Republican failure to secure a consistent immigration policy has fueled voter anxiety, and the national GOP fell victim to an old adage: if responsible politicians do not address voter concerns, voters will find an irresponsible politician who will.  Yet there’s another side to voter anxiety that can’t be overlooked:  the constant hype of immigration concerns amplified by social media, cable news, and talk radio.

If we’re going to draw stark lines, then I’ll happily side with a hardline against illegal immigration.  Any legitimate country must establish firm policies over who can enter its borders, and the conditions under which they can stay. For my own part, I welcome a large number of immigrants from around the world, but I believe the greatest enforcement against illegal immigration must come at the workplace.  Employers who flout the law to take advantage of illegal workers abuse the privilege of a free enterprise system, distort the market for legal workers, make it harder for law-abiding employers and workers, and ultimately do great harm to the immigration debate at large. That’s to say nothing of the harm done to the workers themselves, and their families, who are enticed into a life in the shadows and as pawns for politicians trying to win the next election. 

Much of President Trump’s pitch on immigration has focused on drugs, gangs, and violent crime.  Similar arguments have been made closer to home by North Alabama Congressman Mo Brooks. I understand the frustration with a system that never addresses the illegal immigrant with multiple DUIs or somehow allows a criminal to constantly return to the US only to commit a heinous crime.  I can only imagine the level of grief experienced by families of those victims. Nevertheless, the reality is that crime has been remarkably low at a national level for years. Moreover, the majority of illegal immigrants, whatever the merits of that initial illegal behavior, are peaceful in every other respect.  The tragic cases that catch our eye do so because they are outliers. In a nation of millions, they are simply not the justification for national policy. The saying that bad cases make for bad law is a cliche because it is true.

There are areas along the border where existing walls are effective, and indeed walls and fencing that force migrants to points of entry can be a powerful tool.  Indeed, contrary to the President’s claims, the overwhelming majority of drugs smuggled in to the country come via those ports of entry, either at the border or along the coast.  No one is bringing large amounts of drugs across the open border. Still, even the most ardent supporters of tough enforcement never aggressively lobbied for a big, beautiful wall before Trump threw out the idea on a lark during his campaign.

It was the stalemate over the wall that led to the recent government shutdown.  Funny enough, both houses of Congress were willing to fund the government without the wall as recently as December.  Proponents of the wall will point to this as a failure to act, but that misses the more important point: if the public really, truly wanted the wall, Congress would have little choice but to act.  That’s a painful reality that populists on the left and right continually miss. If the legislation you want never materializes, it’s not a conspiracy. Instead, it is because the political will to make it happen just is not there, and that has as much to do with voters than it does with politicians. 

That brings us to the emergency declaration.  Supporters of this action will point to various declarations on the part of past presidents, Barack Obama in particular.  On a certain level, I agree. I would rather the executive defer almost all policy making back to the legislative branch. Trump’s declaration is unique, though, in that involves appropriating money towards a project that Congress was unwilling to fund.  In other words, this is not normal. It is without historical precedent, and it sets an incredibly dangerous precedent that undoubtedly erode the rule of law and the separation of powers.

It is difficult to separate the issue of the border wall from the emergency declaration, but we should try.   The simple fact of the matter is that there is no emergency at the border. There are concerns, sometimes grave ones, that should be addressed, especially concerning human trafficking.  I share the frustration of those who desire to see our nation have a coherent, consistent immigration policy that is properly enforced. Yet the circumstances today are no different than they were a year ago when neither Congress nor its constituents could not muster the concern to bring the wall to creation.  

The declaration itself is something that Republicans would have never tolerated from a Democratic administration, and quite possibly any other Republican one, as well.  The emergency powers of the executive were never intended to circumvent the legislative branch when it failed to appropriate money for a particular concern of the president’s. This is a policy matter, and if the Trump administration is unable to convince Congress to appropriate the funds – a task the Constitution delegates to Congress alone – then it should return to the drawing board and keep trying.

A number of Republican leaders and conservative voices have expressed grave concerns about the declaration.  Noah Rothman argued that Republicans would regret this moment, and I believe he is right.  David French made the legal argument against this measure, calling it contemptuous.  Republicans who back this move are opening Pandora’s Box, and when a future Democratic President declares an emergency over guns or climate change, there will be no recourse.  

I am deeply grateful for the work of our state’s GOP delegation, and Senator Shelby’s budget work, in particular.  Yet this is a measure I doubt they would not condone from any other president, brought to bear over an issue Congress as a whole did not find it necessary to address in two years of a Republican majority.  Conservatism has long meant adherence to the rule of law in all circumstances, but in backing this unnecessary move, Republicans are taking steps that cannot be undone. It is imperative that conservatives oppose this measure and seek to fund any immigration measures through Congress, according to the Constitution.  Failure to do so will continue our slide into a nation not of laws, but of men.

Matthew Stokes is a writer living in Birmingham. Email him at [email protected] or follow him on Twitter at @yellingstop.

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