In a Fox News interview Monday, Rep. Andy Biggs, R-Ariz., predicted that Congress would not come to a deal on border security with wall funding by its February 15 deadline but suggested that President Trump may have a way to build the wall without Congress and without a national emergency declaration.
“It’s gonna be pretty hard, quite frankly, because I think the Democrats … they’re really locked in. They don’t want to put up any physical barrier,” Biggs said.
“The president probably is going to have to declare that [the border] is an active drug trafficking corridor pursuant to Title 10 of U.S. code, and if so, he’s going to have access to billions of dollars to build the wall, some roads, and infrastructure, I think.”
Biggs is not referring to a national emergency declaration. Rather, as Conservative Review’s Daniel Horowitz has written, he’s talking about a section of law that would permit President Trump to construct roads and fences “to block drug smuggling corridors across international boundaries of the United States.”
[Trump’s] authority is even stronger in the field of combating drug smuggling, even without the declared health crisis. 10 U.S.C. § Section 284 allows the secretary of defense, upon request from federal or state law enforcement dealing with drug trafficking, and in conjunction with the secretary of state, to “provide support for the counterdrug activities or activities to counter transnational organized crime.” Subsection b(7) allows the DOD to provide help in the form of “construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.”
This is not some parsimonious loophole for an excuse to build a wall. This is the whole enchilada, folks. The main reason we need a wall is to combat the smugglers and the cartels who use the migration to bring in their contraband and dangerous criminals. Last October, the DOJ designated MS-13, Cartel de Jalisco Nueva Generacion (CJNG), Sinaloa Cartel, and Clan del Golfo as transnational crime organizations (TCOs).
Fox News’ Shannon Bream moved on from this discussion, but it really ought to be the main focus of advocates for Trump’s legal authority to build a wall. Many conservatives are concerned that declaring a national emergency to build the wall, though lawful, would set a precedent expanding executive power that a future Democratic administration could abuse. For example, some might warn, a future President Alexandria Ocasio-Cortez would declare a national emergency of global warming and usher in her Green New Deal socialist policies without Congress.
Using Title 10’s statutory authority makes the point moot. Trump has the specific statutory power to deal with a specific problem on the border and to build border security infrastructure. No national emergency declaration necessary.
It’s baffling that the administration is not taking this approach.
Chris Pandolfo is a staff writer and type-shouter for Conservative Review. He holds a B.A. in politics and economics from Hillsdale College. His interests are conservative political philosophy, the American founding, and progressive rock. Follow him on Twitter for doom-saying and great album recommendations @ChrisCPandolfo.
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