Blackcap Blog

Published at 08:15 on 15 February 2019

My prediction is that it’s not going to go very well for him. It’s an extreme measure, you see, and it sets a dangerous precedent. Because of how extreme it is, it’s going to be challenged in the courts:

1. Texas property owners will challenge it because it threatens to result in their property being confiscated via eminent domain. Texas has more privately-owned land along the border than any other state, and the border there is along a river, meaning a wall threatens to cut farmers and ranchers off from a source of water in an arid or semiarid climate.
2. The usual suspects (i.e. liberals) will of course litigate it.
3. Congress, particularly the House of Representatives, will litigate as well. Congress has standing in this case; the state of emergency is an attack on the clearly-enumerated constitutional powers of Congress.
4. When it ends up in the Supreme Court, even the right-wing justices are unlikely to see it in as charitable a light as Trump’s Muslim ban. The sole exception is Kavanaugh, who might be enough of a Trump puppet to go along with it. That means the best case outcome for Trump in the Supreme Court is probably an 8–1 loss.

More on the Supremes: The conservative justices are unlikely to be fans of the measure because of the precedent it sets: they don’t want a future Democratic president using states of emergency to bypass a Republican congress. (If left unchallenged, this would probably happen sooner rather than later, because divided government has been the rule, not the exception, since the 1970’s.)

That latter reason means that some GOP senators are likely to find their spine and oppose the state of emergency in the Senate, when the House sends the Senate a resolution disapproving of it. So it’s going to sew discord within the president’s own party.

This all proves, once again, that Trump is not an evil genius. If he were an evil genius, he would have avoided setting all sorts of traps for himself on the border wall issue. He would have taken some budget funding more border barriers, probably one funding them more generously than what Congress just passed (because a solidly Republican Congress would have passed it), as a sign that the wall is being built, and would have strutted around and proclaimed victory, probably with a victory speech along an existing stretch of border wall.