Why Trump should cross the Rubicon

There is every reason to believe that President Trump is about to declare a national emergency in the hope of building his fantasy wall by executive fiat with funding diverted from the military budget. For the good of the country, I not only expect him to do so — I welcome his decision.

If the government shutdown continues after Saturday, it will be the longest in our history. The impasse between the president and Democratic leadership in Congress cannot be breached. Trump has decided that he needs $5 billion to build a concrete wall or a steel fence or a wooden barricade or whatever combination of material and synonym for "obstacle" he's into this week. Democrats insist that the construction of any Mexico-facing edifice is on its face "immoral." Both have everything to gain and nothing to lose rhetorically by refusing to compromise.

Which is why I welcome the wall by fiat.

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Think about it. The order will be on its face meaningless. It will be blocked in the courts for months, even years. "We’re going to be in 2020 before this gets resolved,” Walter E. Dellinger, a Clinton-era solicitor general, recently told The New York Times. "If they are just planning where to build slats, judges are unlikely to decide that requires expedition in the Supreme Court. I think they would recognize the wisdom of going slow."

For Trump this could be valuable in any number of ways. If he so wishes, he can dismiss the news of the wall's intermittent non-completion as a liberal media conspiracy and appear in front of some section of previously constructed fencing with a "Mission Accomplished" banner. The centerpiece of his re-election campaign could be that he has kept all of his major promises — get out of pointless foreign wars, fix NAFTA, "Build the Wall," if not quite "Lock Her Up!" Or he could do the opposite and rail against the fecklessness and criminality of the deep-state liberals who are undermining our national security.

Nancy Pelosi and Chuck Schumer would also benefit politically from such an arrangement. They could rail against the Caesarist aspirations of the meanie in the White House. Or they could congratulate themselves on having effectively neutralized his brutal will-to-power fantasies. There is nothing to prevent both sides from doing all of these things, despite or perhaps because of the fact that their claims are mutually exclusive.

I have written before in this space about the constitutional changes we are seeing in front of us. Trump's attempts to make trade and immigration policy, conduct diplomacy, and remake health-care law without Congress are a continuation of a trend that began under George W. Bush, continued apace under Barack Obama, and are now probably inexorable. It has, among other things, put paid to the old argument that divided government serves as a check on the authority of the executive branch. In three consecutive presidential administrations the recalcitrance of opposition parties has enabled presidents to do whatever they believe is in the interest of the country. Is this really what the framers intended? Who knows. Perhaps it represents the gradual unfolding of some kind of sinister logic inherent in the structure of the Constitution itself; perhaps it is simply evidence of our national decline.

It is not clear to me that any party or figure stands to benefit more than any other from these extraordinary changes. A quasi-unitary executive is a value-neutral governing technology. It could just as easily serve a President Kamala Harris, who, in 2024, decides that that a few miles of fencing on the outskirts of El Paso must be torn down regardless of what the Republican-controlled Senate has to say about the issue.

But these are questions for another day. In January 2019, nearly a month into this shutdown, the crisis we face is a humbler one about egos and partisan face-saving. It is one that has an obvious solution. It also offers an important lesson. Nothing — not even the gradual subsumption of the law-making power of our legislature into the executive branch — is a more powerful force in American public life than nihilistic partisanship.