Trump should revisit 3 executive powers to break the border impasse
Trump should revisit 3 executive powers to break the border impasse
January 24, 2019
Daniel Horowitz
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If we consent to the notion that the president is prohibited from following the Immigration and Nationality Act (INA) and his inherent executive authority to stop this invasion, then there’s nothing we can do, and we as may as well cede the presidency to Kamala Harris. But if the president is willing to use his lawful powers and more aggressively push back against lawless lower court opinions and their illegal universal injunctions, there is a lot he can do. By credibly threatening to use executive action based on lawful powers, the president can upend Pelosi’s leverage.
The first step is for the president to communicate his message directly to the American people. There is no way around that. This entire battle is one of messaging.
There is a reason Pelosi denied the president the platform of the State of the Union by taking the unprecedented step of disinviting him to speak before the House. She knows that for the president to speak in in the traditional presidential manner for a full hour, laying out the evils of open borders and the danger of her policies empowering the cartels, will reframe the debate over this issue. Yet by disinviting Trump, Pelosi gave him an even bigger platform … if Trump is willing to use it.
To that end, the president should reconsider his decision to scuttle the State of the Union and deliver it at a venue on the border flanked by law enforcement and Angel Families. He should use imagery to depict the severity of the problem caused by Pelosi’s preferred immigration policiesand that this has gone on long enough. This speech, because of its unique circumstances, would get more viewers and look better for the president than anything he could have done in the House chamber. In some ways, it would be the most dramatic use of the bully pulpit ever.
After Trump shows how severe the problem of illegal immigration is, he should lay out the following strategy, threats, and demands.
Threaten executive action
As long as Trump makes it clear that he cannot do anything to stop the invasion without Pelosi caving, she will not cave. But the minute he makes it clear that he will act unilaterally anyway, it will change the dynamic. Accordingly, Trump needs to make it clear that the difference between his and Obama’s use of executive action boils down to the Constitution and our existing statutes. Obama violated them in order to subvert sovereignty; Trump will follow the INA in order to preserve sovereignty and national security. He should then promise to revisit three ideas he seemingly has backed away from: ending the illegal DACA amnesty, shutting off all border migration, and using a military buildup to construct border infrastructure.
End DACA
How can a district judge tell the president he must continue Obama’s illegal amnesty? Trump needs to tell the American people that statute tells him these people must be deported, while a district judge, forum-shopped by the Left, says otherwise. He must follow statute. Nobody can challenge his use of executive action when that action itself is a mere reversal of Obama’s unprecedented action. He should explain the illegality of these rulings based on statute, rules of standing, and the fiction of universal injunctions.
Remember, the Judge William Alsup said very clearly that he was not saying DACA “could not be rescinded as an exercise of Executive Branch discretion,” he just disagreed with the way in which Trump got rid of it. While the judge was still off his rocker, nothing is stopping Trump from ending DACA now.
Trump can’t have it both ways. He can’t treat DACA as an important negotiation tactic for amnesty but then agree to the legal premise that he must do it and the political premise that it’s “the right thing to do.” He needs to give Democrats the impression that he will get rid of it. Right now, Democrats have no reason to deal with Trump because they are getting a permanent de facto extension of non-immigrant visas for those amnesty recipients indefinitely. Thus, they will wait Trump out for an even better deal on a more expansive amnesty. But if Trump threatens to take from them what they already think they have in the bag, it will change the negotiations.
Shut down all border migration
Nobody can ever credibly argue that a president lacks inherent executive authority as well as delegated authority to shut down all migration at our border, no matter how a judge wants to erroneously create loopholes in asylum. Article II powers over foreign commerce and INA 212(f) override all immigration, including legitimate immigration programs. This power has never been challenged, and indeed, the Supreme Court just upheld it last year. For a single district judge, Jon Tigar, to come along and give standing to random political groups to sue for caravan invaders outside our country is beyond laughable, and Trump needs to make that judge and his capricious rationale famous in his speech. He must build the case that no district judge can put an injunction on the power to control who crosses our border.
Threaten a military buildup
You know what we need more than a partial border wall, at least in the short term? A serious military operation at our border. If we can’t understand the threat the cartels pose to our nation and the cost in terms of thousands of homicides, drugs, gangs, and financial burdens, we have no business being a sovereign nation. If a president can deploy troops in 140 countries without authorization from Congress, then you better believe a president can repel an invasion when cartels are on our soil directing their operations. Even Joe Biden called for such a military operation decades ago when the cartels weren’t nearly as powerful.
It’s time for Trump to announce that the days of the evil cartels hurting Americans and Mexicans are over, and he will turn our military on them. Just the threat of doing so will shake up the cartels beyond belief. And once he beefs up the military presence, it’s much easier for him to use DOD funding to build infrastructure.
Make Democrats take tough votes
Once Trump asserts the threat to employ lawful and thoughtful executive action to stop the border invasion, he should then lay out a series of demands for Democrats covering all aspects of illegal immigration. He should call upon McConnell to make Democrats take a series of tough votes that will now be backed by the threat of executive action regardless of what they do in Congress.
Here’s how the strategy would work:
Step 1: Pay our agents
The time has come for Trump to call upon McConnell to force a vote on funding law enforcement working during the partial shutdown. The bill should require immediate pay for agencies like Border Patrol, ICE, FBI, DEA, TSA, and the Coast Guard. That’ll still leave the nonessential agencies on the table (many of which probably don’t need to exist) while daring Democrats in the Senate to vote against pay for law enforcement. I’d force Democrats to hold the floor and continuously block the bill. Right now, Senate Republicans are doing nothing while Pelosi passes her bills out of the House. This will shift the momentum.
Step 2: Deny pay to the cartels
The cartels are making a killing off the judicially created loopholes in our laws. McConnell should force votes on ending the Flores settlement, which is what is incentivizing family units to come with children (sometimes not even their own) and get quasi-amnesty through catch-and-release. He should also make them take tough votes on welfare benefits for illegal aliens and clamping down on identity theft.
Step 3: Stop illegals from murdering Americans
The Senate should also force votes on a bill named after murdered officer Ronil Singh. Every illegal alien homicide, by definition, is avoidable because the illegal aliens shouldn’t be in the country. However, most of them are doubly avoidable because most murderers usually have prior rap sheets and are picked up for “lesser” crimes. This is the enduring lesson of Ronil Singh’s murderer, who was picked up twice by cops for DUI but was never turned over to ICE.
As of fiscal year 2013, we already had 1.9 million criminal aliens in this country, yet almost none of them have been deported, and that number is likely much higher now. Republicans need to mandate immediate apprehension and deportation of all criminal aliens and cut off funding to any locality that fails to turn over illegal aliens arrested for crimes, including DUIs and drug trafficking. Interior enforcement is the key, and voting against it is radioactive for certain Democrats if Republicans actually forced a sustained debate over it.
The bottom line is that Democrats have never been forced to defend all their indefensible positions, nor have they felt any urgency to change course. Trump has a bully pulpit that nobody ever had; he wields the executive powers to follow immigration law and block foreign invasions that every president has had; and his party still has control over the Senate, where he can embarrass Democrats with one vote after another.
There is no silver bullet strategy after years of messaging failures by the GOP on the immigration issue. But declining to use the bully pulpit, failing to force Democrats to take tough votes, and negotiating down on amnesty without any executive leverage is surely a recipe for disaster.
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