President Trump signed an executive order on Wednesday directing his Administration to commence the “immediate construction of a physical wall” on the southern border. It’s the fulfillment of his signature campaign promise to build a “big, beautiful wall”—something that was generally derided as impossible by the press and his opponents during the campaign, even if he did win.
But not only is it possible; the President already has the legal authorization to do so. NPR reports:
Questions still surround the details of the plan for a wall — chief among them, how the undertaking would be paid for. A law already exists that experts say gives Trump the authority to start building the wall. It is the Secure Fence Act of 2006. It was bipartisan; it was overwhelmingly supported during the Bush administration.
The 2006 law envisions both physical barriers and high-tech features, like sensors and cameras mentions. It also mentions a two-layer fence — but that fence was never built, and the legislation didn’t include money to pay for one. Ten years later, the process could begin in earnest.
President Trump will not be able to complete construction of the wall on his own: he will have to go to Congress for appropriations at some point to obtain the greater part of the $20B some estimate the wall will cost to complete. But he should able to free up enough funds to get started, which would allow him to present the wall as a policy fait accompli when he does so. And he has the legal authority to act now, until the money runs out.
Few things could more clearly illustrate the dereliction of duty on the part of the pro-immigration reformers over the past twenty-odd years. The previous three Presidents (at least) have all been pro-immigration, and increasingly so: President Bush pushed amnesty harder than President Clinton (who signed a rigorous enforcement bill in 1996 as part of his triangulation push), while President Obama was more activist than President Bush. Pro-immigration forces controlled a commanding majority in the Senate, and while the House proved trickier, the cause was supported by the leadership of both parties.
Under these circumstances, the leaders and the advocates for this cause pushed for a “comprehensive reform” bill that people suspected—with good reason—would repeat the failed 1986 amnesty-for-enforcement bargain. They refused to prioritize meaningful, incremental enforcement-for-reform deals in the meantime. And they relied on executive discretion in enforcing the law, a mode of action that ultimately, under President Obama, went so far as to seriously stretch the bounds of our Constitutional system. In the process, they also made a bonfire of their credibility on enforcement. That applies to the Congresses of this period as well as to the Presidents: look no further than this fence law, passed but never funded, nor ever expected to be.
The immigration reformers frittered away their years of inter-party, inter-branch dominance and failed to leave lasting structures that would channel our debates and our policies going forward. They failed to craft the compromises that would be needed to do so, pressing instead for full amnesty and increased legal immigration and increased H1-B visas, and on down the line, thinking arrogantly they could refuse to give ground and that demographics would carry the day—and, crucially, that the ever-widening gap between the law and executive policy would be infinitely sustainable because we’d have an elite pro-immigration President forever. This was a colossal failure of governance.
After hubris comes nemesis. The Trump Administration is moving with great speed to collapse that gap between executive action and the law. He’s also harnessed the backlash years of maximalist immigration policy bred to push for changes to the legal architecture that will go further still. And of course, he has a host of precedents for (overly-)muscular executive action in this sphere helpfully left for him by President Obama.
As a result, and because of the dynamics that accompany a populist backlash, enforcement measures, including the wall, that could have been put into place over time and with subtle regard to the needs of interested parties will be implemented swiftly and bluntly. The politicization of this country’s refugee process, which began under the last President, will be accelerated by this one. Laws that needed to be reformed may be operated on with bone-saws, not just scalpels.
Unfortunately, nemesis won’t fall as hard as it should on those who deserve it most. Lefty consultants who gloated that demography would obliterate their opponents will still find gigs. Many of the politicians most at fault are comfortably retired, while others (such as Chuck Schumer) have gotten promotions. Professional activists will actually see a boom in business during the Trump years.
Instead, their failures will fall hardest on those least able to bear it: on poor, legal immigrants living and working in border zones; on immigrants who, though here illegally, have responded rationally to thirty years of policy signals from American leaders of both parties and spent decades building lives here on those assumptions; on refugees who need access to programs that have now been rendered politically toxic.
Sincere pro-immigrant and pro-immigration leaders need to think long and hard about what to do next. It will be tempting, particularly for those on the left, to take an absolutist, “hell no” stance and hope that Trump’s positions prove so repellant to so much of the country that majorities will vote to oppose them. But that’s a big, risky bet, gambling (again) with other people’s lives. Rather, those who have the best interests of immigrant Americans at heart should seriously consider, when President Trump’s wall appropriations comes up, whether they can trade acquiescence to it for greater acceptance for those already here. They ought to explore whether they can trade reforms in the legal immigration system for a long-term consensus that keeps the doors to this country open. They ought, in short, to be seeking ways to de-escalate the increasingly absolutist pro- and anti-immigration stances each side of the divide has been taking.
As I’ve written before, America has historically swung between periods of incredible openness to immigration and almost complete restriction. Restrictionism isn’t a cause that began with Trump, nor would it end with his defeat—and there’s no reason to suppose that given a binary choice between wholly open and wholly closed borders, even those sympathetic to immigration (or even, experience shows, immigrants already here) will choose the former. We need to start thinking about how to de-escalate, to strive for immigration policies, including true enforcement, but also amnesty and reforms to the legal immigration system, that can garner sustainable long-term support. We need, in short, to start thinking about how to be as responsible as our leaders should have been all along.