The following “to do” list needs to be on President Donald Trump’s desk this morning before mistakes are made in the implementation of a border wall built with emergency funds. With the fast-moving news, if it is not too late already, there is great risk of snatching defeat from the jaws of victory.
1) Take the weekend to get it right. It is not enough to do the right thing. One must do it the right way. Especially with controversial actions that are certain to be tested in court, the details matter. PUT DOWN THE PEN and take another 96 hours until Tuesday morning.
2) Do not sign the budget deal. (It will probably be too late by the time anyone reads this.) There is concern that it could weaken or even destroy the President’s ability to declare an emergency to fund the border wall mandated under the Secure Fence Act of 2006.
Some of the 140+ limitations and poison pills marbled through the corrupt budget deal just worked out could seriously repeal Trump’s authority to declare an emergency to fund the wall. Trump should not sign the budget deal until the money is already reprogrammed under an emergency.
3) Don’t declare a national emergency — today. Wait a few days.
Government workers will mostly be off for the weekend plus President’s Day on Monday. Government employees won’t be back to work until Tuesday morning anyway.
4) (VERY IMPORTANT.) First, Texas must ask for an emergency. Most emergencies are requested by a State’s Governor. While a president does have the power to declare an emergency under the National Emergencies Act of 1976 without being asked, in this case Trump should not. Trump must get on the phone confidentially behind the scenes and inquire if the Governor of Texas, Greg Abbott, will issue a request for a declaration of an emergency.
The courts cannot stop Trump’s declaration of an emergency, if it is based upon a request from the State of Texas. Abbott — when then Attorney General of Texas — already wrote letters to then President Barack Obama demanding immediate action. He didn’t use the word “emergency” but what he said was essentially the same.
Some may be cynical about whether Abbott was just posturing for the base. But he is already on record writing letters to the then-President which lack only the word “emergency” to be a request for an emergency.
5) Sort out the details. The devil is in the details. Document, document, document. Trump should ask Texas’ Governor for a complete list of every incident, threat, example, and circumstance of gang violence, intrusions by coyotes, danger, drug smuggling, human trafficking, sex slavery, money laundering, etc. The emergency must be supported with specifics.
6) Trump should work with the Texas state legislature. He could ask the Texas legislature to invoke Article 4, Section 4 of the U.S. Constitution, which requires the federal government to defend the States. Rep. Briscoe Cain and Rep. Kyle Biedermann of the Texas House of Representatives are some of those taking the lead on this issue.
7) Declare an emergency, but take action only in Texas. Texas is in the Fifth Circuit. Actions in California, New Mexico, and Arizona go to the Ninth Circuit. Understand that the declaration of an emergency can be separated from the specific actions taken under the emergency status.
8) Reprogram emergency funds immediately under the authority of the emergency declaration — before signing the budget deal bill.
NOTE: It is said that Congress gets to overturn an emergency. Well, not exactly. The National Emergencies Act of 1976 gives Congress the power to “terminate” a state of emergency.
That would mean that if Trump had already moved the money before Congress votes to terminate the emergency, then the money is “gone” — re-purposed to build the wall.
The power of Congress is not to overturn the emergency — as if it had never happened. The text of the National Emergency Act of 1976 talks about when the emergency ends
So if Trump has his Office of Management and Budget and Department of Defense people work all weekend and on President’s Day, and signs the paperwork at 7 AM on Tuesday morning when the government re-opens after President’s Day and then later that same day Congress votes to “terminate” the emergency, that would NOT invalidate the moving of the money already completed before they “terminate” the emergency.
Furthermore, the courts cannot overturn an emergency. The law commits the question to Congress. Unless the courts break their own rules, the courts cannot consider the question. The issue is “textually committed to another branch.” Since Congress has been given the power to end an emergency, the courts have been deprived of any authority. It is purely a “political question” committed to Congress.
9) Sign the budget bill only after the funds have already been reprogrammed under the declaration of an emergency. Keep the budget people working all weekend. The budget deal cannot stop the reprogramming of funds under the emergency declaration after the money has already been moved over to fund the border wall.
NOTE: There is significant cause for concern that all of the limitations and poison pills in the budget deal bill could cancel Trump’s authority to build the border wall by emergency declaration.
Move the money first (this weekend) before signing the budget deal. If the money has already been moved, the budget deal cannot stop it.
10) Don’t worry about the courts. Well, no. Fear the courts when it comes to being meticulously careful in doing it right — Then ignore them. Trump needs better legal advice and help to carefully plan the strategy and implementation and navigate the land mines. However, if the plan is done right, the courts cannot stop this. No need to tip off the anti-American open border activists explaining why they are going to lose badly.
11) Break up the building of the wall into its constituent steps.
Many of the constituent steps can be accomplished without using “border wall” funding per se, but are normal tasks.
12) Order the Defense Mapping Agency and the National Imagery and Mapping Agency within DoD and the U.S. Geological Survey within the U.S. Department of Interior to complete a comprehensive analysis and study of every mile of the border.
Most of that data already exists of course but it should be compiled into a mile-by-mile comprehensive analysis, designating each section by identification number, including satellite imagery, topography, and soil / geological conditions.
13) Order the Department of Defense to build an access road or upgrade existing roads, as needed, along the international border. President Dwight Eisenhower spearheaded the interstate highway system as important for national defense, for moving troops and equipment quickly around the country. The military needs to be able to access the international border along its entire length.
14) Dispense with the “designed to fail” wall designs.
There are companies that can build vertical slats or Bollard wall designs (without the cap at the top, to frustrate climbing) right up to the banks of the Rio Grande. If there is a road there, we can build he wall right next to the river. The right way to do it is to SINK a steel “footer” deep into the ground (dig a trench) which has wings or feet out to the side. That footer is buried deep into the ground, and then is buried. Even in wet conditions, the wall will stand up on top of it above the ground. Add concrete if you want, but that is not necessary. Remember that underwater concrete exists. So pretty much all that is needed is the ability to dig a deep and wide trench, transport of the steel parts, and to stand up the vertical slats on top of the (to be buried) footer.
15) Work around the butterfly fiasco to avoid unnecessary public relations problems.
Construction of the wall is about to cut through the North American Butterfly Center’s 100 acres because the builders are foolishly leaving 70 acres of U.S. soil on the Southern side of the wall.
Invaders will cross the Rio Grande, set up a tent city with U.N. refugee monitors, reporters, birth tourism, and circus, in the 70 acre landing zone created by putting the wall in a stupid place. There are companies that can put the wall right up next to the Rio Grande — not half a mile inland. Ask James Bonk, who worked on the wall construction teams in 2006 to 2008. There is already a road right along the Rio Grande. The wall can be built next to the river.
16) Incorporate irrigation canals or pipes to supply water to those ranchers or farmers who currently rely on the Rio Grande for access to water.
17) Minimize unnecessary friction related to the use of eminent domain.
Do not take entire ranches or farms. Put the wall as close as possible to the Rio Grande. Don’t take any more land than necessary. Take an EASEMENT by eminent domain as a narrow strip along the border.
No one should have private ownership of the international border. It is bizarre that this was ever allowed to develop. No private landowner should expect to own land right next to the international border. No such landowner’s complaints should be taken seriously when they knew that is our nation’s border. But we will compensate them under the Fifth Amendment rules for eminent domain. The value of their land will increase without gang violence and trespassers flowing across the border. We should compensate them only for a narrow easement along the border itself.
As background, one letter responded to bullets fired from Ciudad Juarez, Mexico, struck City Hall in El Paso, Texas on June 30, 2010. (See Texas Capitol Report, El Paso Times, June 30, 2010.)
June 30, 2010
Dear Mr. President,
Deadly violence from drug cartels and transnational gangs in Mexico is knocking on the United States’ door with ever increasing frequency. Yesterday, gunfire from the cartels pierced that threshold and struck City Hall in El Paso. Fortunately no one was injured or killed. But that good fortune was not the result of effective border control – it was mere luck that the bullets struck buildings rather than bodies.
Luck and good fortune are not effective border enforcement policies. The shocking reality of cross border gunfire proves the cold reality: American lives are at risk. As the attached news article notes: “More than 1,300 people have been murdered in Juárez this year as a war continues relentlessly between the Juárez and Sinaloa drug cartels.” Americans must be protected as this deadly war bulges at our border.
Law enforcement officials with the Texas Department of Public Safety and your own U.S. Customs and Border Protection will reveal the hard truth. Our state is under constant assault from illegal activity threatening a porous border.
The time for talk has passed. The time for action is now. The need is urgent. Each day that passes increases the likelihood that an American life will be lost because of the federal government’s failure to secure the border.
This threat demands immediate and effective action by your Administration to secure our border. As the Attorney General of Texas, I urge you to make border security your top priority so that no more innocent lives are lost to border violence.
Attorney General, State of Texas
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