Trump is wrong about the wall but he might have picked the right fight

The battle over Donald Trump’s emergency declaration has escalated. Last Monday, 16 states sued the president over what they see as an unconstitutional and unlawful “diversion of federal funds toward construction of a border wall”. Their opposition to the president’s latest diktat is well-founded.

Taking a page from the playbook of Trump’s personal lawyer Jay Sekulow, who once called Obama’s use of executive power “tyrannical”, the plaintiffs compared Trump’s power grab to Harry S Truman’s unconstitutional steel mill seizure during the Korean war. Now, it appears a third of the money Trump wanted to redirect for the wall has already been spent. It is a comedy of errors – almost.

It is likely Trump’s move will not prove politically fatal. To be sure, more than six in 10 Americans disapprove of the president’s declaration, 57% viewing it as an abuse of executive authority. But even if the president’s opponents were ultimately to prevail in court, their victory would not be a knockout.

Rather, in the face of changing demographics and uncertain economy, Trump’s stance on wall funding and immigration is a defiant gambit. It failed in the midterms, but it still resonates with many of his supporters.

The immigrant population is nearing a record high, almost 14% – more than 44 million people living in the US were born elsewhere – the fertility rate is at a 40-year fertility low, the economy appears to be creaking ahead at an anemic pace. The anxieties and resentments that powered Trump’s electoral college victory are still potent and present.

To put things in perspective, the US first adopted national-origin based immigration quotas in 1924, a time when the foreign-born figure exceeded 12%, lower than today. There is no reason to assume sentiments voiced nearly a century ago will not drive the conversation again, as they did in 2016.

Trump’s hard line is winning converts. In Iowa, support for the president and the wall has crept up: 46% of Iowans give Trump a thumbs-up, his highest approval rating there since his inauguration. Thirty-seven percent of Iowans unconditionally back the wall, a seven-point jump since 2018.

Nationally, the president’s approval deficit is only in the single digits. Trump has picked himself off the floor after the shutdown drama. He has brought the conversation back to social flashpoints, as opposed to merely demonstrating callous ineptitude daily for five straight weeks.

When the president hammers the Democrats for being socialists it is not just about voicing a preference among competing economic systems. Rather, he is reminding all that capitalism is part of America’s reality and heritage. The US is the richest and most powerful country on the planet and capitalism helped it get there.

Trump and the Republican party are also framing that national inheritance as another front in our never-ending culture wars, an inheritance they argue Alexandria Ocasio-Cortez, Rashida Tlaib and many fellow Democrats would abandon. From the looks of things, the strategy has already paid dividends.

In remarks reminiscent of the 1950s and the red scare, Kamala Harris, a declared Democratic candidate, and Beto O’Rourke, a potential candidate, have denied being socialists. Apparently, not everyone wants to be Bernie Sanders.

When the neo-liberal Tom Friedman of the New York Times openly criticizes an iteration of Ocasio-Cortez’s New Green Deal that called for “economic security to all who are … unwilling to work”, it becomes tougher for Democrats to accuse Republicans of launching unfair partisan attacks. Plans for government-funded “economic security” divorced from work are fair game politically, and at odds with the ethic underlying FDR’s New Deal.

As Roosevelt framed things in his 1935 State of the Union message: “Dependence upon relief induces a spiritual and moral disintegration … To dole out relief in this way … is in violation of the traditions of America.” Almost 60 years later it was Bill Clinton, a Democrat, who signed welfare reform into law, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. For most Americans “money for nothing” lies in the realm of rock music. Welfare for those who refuse to work does not rate high on the American values scale.

Back at the border wall fight, Sekulow has announced that he will support the incumbent president, again proving consistency to be inconvenient. It is only tyranny when the other guy is in the Oval Office.

Sekulow has provided ample fodder for those looking to torpedo the wall in court. And there’s more. Testifying in 2014 before the House judiciary committee, Sekulow argued that Congress’s refusal to embrace Obama’s view of immigration did not empower him to stiff-arm Congress and alter immigration law by fiat.

In Sekulow’s words: “Congress’s refusal to enact the policy President Obama prefers is not ‘silence’ or a ‘failure’; it represents our constitutional system working as intended.”

This month, Congress actually passed an appropriation bill. It did not punt. Here, accusations of inaction are no fig leaf for presidential over-reach.

Expect the scrum to continue. Thankfully, there are fewer than 620 days until election day 2020.

• Lloyd Green is an attorney. He was opposition research counsel to George HW Bush’s 1988 campaign and served in the Department of Justice from 1990 to 1992