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What Happens When a Political Fights Turns to the Courts?

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No doubt most Americans are somewhat familiar with Donald Trump’s fight with Congress over funding for a border wall. Over the course of December and January, Trump shut down the government because Congress refused to pass spending bills that included funds to build a wall along the Mexican border.

The shutdown did not produce results and finally Trump and Congress agreed on a spending bill that provided minimal wall funding but was also loaded with restrictions that limit the size and location of the wall and require approval of local town officials (mostly Democrats). The funding bill was better than nothing, but not by much (as intended).

Trump next declared a state of emergency so he could obtain wall funding from various other sources including the departments of Defense, Treasury and Homeland Security. A variety of state governments led by California promptly filed a lawsuit against this move while Nancy Pelosi took steps in Congress to vote on a resolution of disapproval. The lawsuits and the vote were both intended to derail Trump’s plans for the wall.

Trump critics were quick to conclude that either the resolution of disapproval or the lawsuits would stop Trump in his tracks. But don’t be so sure.

This article makes the point that the critics and mainstream media may have this wrong. The relevant National Emergencies Act does not define “emergency,” which gives the president broad discretion to decide what is an emergency. More importantly, this is a “political dispute” between the executive and legislative branches.

Federal judges, whether liberal or conservative, are extremely reluctant to act as referees on political disputes where no grave constitutional issues are involved. The fact that Nancy Pelosi has a legislative remedy (the resolution of disapproval) will make judges even more reluctant to get involved. And even if this case is taken up, it will end up in the Supreme Court, where a conservative majority may well rule in favor of the president.

Don’t sell Trump short on this; he knows what he’s doing. Bet on the wall, which may mean higher labor costs and lower corporate profits in the years ahead.

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