OPINION:
America needs a border wall and tighter enforcement, but it is likely to get neither because Democrats have chosen to cynically use immigration policy to boost their electoral prospects and the courts are not likely to uphold President Trump’s declaration of a national emergency.
State entropy and violence are prevalent throughout Central America and much of Latin America, the Middle East and Africa, where violence, famine and unemployment are driving millions north.
The Border Patrol is apprehending illegal migrants entering the United States through Mexico as families at a rate of 260,000 per year. Once in the hands of Immigration and Customs Enforcement (ICE), they may apply for asylum.
With the incredible backlog of applications overwhelming beds in detention facilities, they get released into the general population pending a hearing and can join the 11 million illegal immigrants driving down the wages and overwhelming the cultures of Americans in poorer communities.
If a family gives birth to a child, ICE can forget about deporting them altogether.
Sophisticated technologies — cameras, drones and the like — are more cost efficient than a wall, but only a wall can keep these migrants from setting foot on American soil and abusing our hospitality.
Most asylum claims are bogus. Mexico offers migrants humanitarian visas and the opportunity to work, but politically motivated judges have squashed administration attempts to limit asylum claims.
Sadly, the U.S. Supreme Court led by Chief Justice John Roberts has become quite comfortable arrogating power in response to public sentiment — for example, striking down state statutes prohibiting gay marriage — and acceding to political pressure from Democrats — the peculiar reasoning Justice Roberts applied to declare Affordable Care Act fines are taxes.
White House adviser Stephen Miller, characteristically, has not done the homework to permit the administration to effectively argue that a national emergency exists.
Mr. Trump charges the illegal horde is full of criminals, and House Speaker Nancy Pelosi, always a comforting presence, counters that Americans commit rape, robbery and homicide, too. What matters is whether poor immigrants commit crimes at an alarming higher rate.
Since 2015, Germany has admitted more than 1.4 million asylum seekers — about 2 percent of its population, they commit about 14 percent of the crimes. Surely, the FBI could help Mr. Miller to come up with comparable American data, and we could get at the truth.
Polls show most Americans don’t support the wall and believe legal immigration is good for the economy and our culture, and no one has a finger on the pulse of voters like Mrs. Pelosi, except perhaps Justice Roberts.
The 1976 National Emergency Act empowers a majority in Congress to nullify presidential declarations. However, with the GOP holding the Senate, lawsuits will decide whether the president can supplement the $1.4 billion authorized by Congress to build 55 miles of border fence by transferring Department of Defense funds to instead build 234 miles of fence.
The National Emergencies Act does not define a national emergency. Instead, that is spread over at least 470 statutory provisions. One states “the Secretary of Defense can “undertake military construction projects necessary to support such use of the armed forces.”
As Justice Robert Jackson reminded us in Youngstown v. Sawyer (1952), which overturned President Truman’s nationalization of the steel industry to support the Korean War effort, presidential discretion is at its peak when it acts with the support of Congress and “at its lowest ebb” when it is “incompatible with the expressed or implied will of Congress.”
When the Republicans controlled Congress, Mr. Trump could not get his wall built, and he campaigned on the issue in the midterms and got shellacked. Now, House Democrats have decided — albeit cynically — there is no pressing need for a wall.
The president recognizes he will get pilloried in the lower courts but expects a fair hearing in the Supreme Court. He should ponder Justice Roberts’ ire regarding Mr. Trump’s charges about the politicization of the courts — sometimes being right is not enough.
For Americans living in large prosperous cities, the influx of well-educated legal immigrants, especially in STEM disciplines, are welcome, but most illegal immigrants become burdens in the labor markets and on public services in Trump country.
If Mr. Trump fails to gets his wall, the crisis at the border could easily become a mass migration that imposes incalculable burdens on those Americans least able to bear them.
• Peter Morici is an economist and business professor at the University of Maryland, and a national columnist.
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