There is a common strain of argument amongst those who would abuse and debase our constitutional system of government. They manufacture deceptive dreck in the knowledge that their loyal partisan friends will swallow anything to get what they want. Remember when Barack Obama repeatedly declared that he couldn’t bypass Congress and implement unilateral immigration reforms — including suspending deportations — but then did it anyway?
Oh, that’s fine, said the partisans. It’s just “prosecutorial discretion.” No, it wasn’t. He created entirely new programs — new government benefits — and not only did he do so without Congress, but he did so without even observing the formalities of the Administrative Procedure Act. His homeland-security secretaries simply wrote memos.
Now it looks like it might be Donald Trump’s turn, and once again partisans are tripping over themselves to disregard the law in service of their imperial president. He doesn’t need Congress, they say. The law gives him the authority to declare an emergency and build his wall anyway. But if that’s true, why is the government shut down? Why are we going through this ridiculous charade? Why didn’t he declare an emergency and build the wall months ago? Why didn’t he deal with this crisis the moment he walked into office?
The answer is simple. If you look at the plain language and clear intent of the relevant statutes, they do not permit Trump to defy Congress and build his wall. He knows it. Congress knows it. His own lawyers know it.