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  • Max Stearns

A Border-Wall Compromise

We are nearing the end of day 28 of the longest partial US government shutdown in American history. By most media accounts, and observing Donald Trump and Nancy Pelosi, there is no end in sight. The costs are already enormous and threaten to become more so as time goes on: About 800,000 federal employees are forgoing regular income, although now with a commitment to backpay once this ends. Federal contractors whose livelihoods, on the other hand, depend on such cashflows have no such commitment. Those dependent on federal social welfare programs risk serious consequences for health and well being. Federal agencies, such as the Food and Drug Administration, are suspending operations with broader consequences. Business communities dependent on federal employee patronage are at risk of failure. And were TSA workers to strike, that could devastate the safety and flow of domestic and international travel. We are also observing what some characterize as a tit for tat game. Following Nancy Pelosi’s postponement of Donald Trump’s State of the Union Address, based on claims associated with agency coordination and national security, Donald Trump postponed Pelosi’s planned travel to three foreign military sites connected with a fact-gathering mission resulting, in part, from Trump’s announced troop withdrawals. Labeling the shutdown a crisis is no longer hyperbolic.

There’s plenty for both sides to dislike about my admittedly unusual proposal. That’s in the nature of compromise, and we are in great need of unconventional thinking. While out of the ordinary, the proposal is not fanciful. My starting point is to recognize that each side claims moral support for her or his position, even if we, as citizens, discredit one or both of those positions. Without acknowledging these differing starting points, there is no possible pathway forward.

Donald Trump successfully campaigned on a strategy that committed to putting a wall along our southern border with Mexico. Yes, he insisted that Mexico would fund the wall, and it is fair to observe that any financial benefits associated with the US-Canada-Mexico trade deal are not equivalent. It is also fair to acknowledge disputes concerning the dangers of persons, and drugs, crossing the unadorned southern border, as opposed to at legitimate points of entry, including airports. My goal here is not to survey or assess the validity of policy claims concerning the wall. I am setting my personal views aside. Instead, the goal is to recognize that Trump and his supporters claim a mandate resulting from Trump’s historic defeat against a vast Republican field in the 2016 primaries, and against Hillary Clinton in the 2016 general election.

Trump's opponents rest on two data in tension with the claimed wall mandate. First, although Trump won the 2016 general election, Trump lost the popular vote by a non-trivial margin. Although Trump and his supports rightly maintain that had the election rules differed, so too would his campaign strategy, the stubborn fact remains that Trump has failed to demonstrate majority electoral support. Second, the Democrats took the House in the 2018 midterms. Together with the 2016 general election popular vote, these data imply that, nationwide, the center of gravity for the US electorate might sit just left of center, and thus distant from Trump’s base. Any compromise must acknowledge these competing perspectives on the wall mandate.

The compromise:

The House and Senate pass a bill that Donald Trump signs into law committing to the authorization and appropriation of a specified amount for wall funding along the southern border with Mexico, contingent on two events coinciding in the 2020 election: (1) Donald Trump or another candidate supporting the wall is elected, and (2) either (a) the electoral college outcome in favor of that presidential candidate coincides with the national popular vote (within a specified margin of error to avoid recounts unnecessary to resolving the electoral college outcome); or (b) that candidate's party also wins control of the House. If either pair of conditions (1) and either (2)(a) or (2)(b) are met, an elected President supporting the construction of a southern border wall will be authorized to release the funds, as needed, and to commence the wall construction, including any associated property acquisitions using the power of eminent domain, on an expedited basis, beginning in February 2021.

The explanation:

It is impossible to know precisely where the American public sits respecting the wall. Technically, it's hard to know the location of the nation's median electoral voter on that issue, although polling data suggest that a majority of US voters oppose the wall. Of course, we do not resolve national policy based on polling data, and at the federal level, we do not have policy referendums. If we did have referendums, those processes would not account for the weight of voter preferences, registering instead the number of voters supporting or opposing the ballot measure. Historically, at the federal level, the principal measure of voter preference intensity has long been turnout in our primaries, caucuses, and general elections. For that reason, many voters intuitively regard our presidential election as a national referendum on the core commitments of each major party candidate. In that sense, Trump’s base is within its rights to maintain that their support, resulting in a victory that thwarted virtually all polling data, corresponded with Trump’s unerring commitment to building the wall.

Trump's detractors can pick part the preceding account, on grounds reviewed above and in a separate post. All politics, perhaps especially our politics, is messy. The proposed wall compromise sets aside these debates and rests on on a simple premise: it is reasonable to condition the construction of the wall on at least one datum signaling voter approval for it beyond the electoral college outcome in 2016. The proposal rests on coupling that outcome in 2020 with either of the two most credible supporting data for nationwide support: the national popular vote or a favorable House victory.

There are three overriding benefits associated with this proposed compromise:

First, it allows the government to immediately reopen. No more needs to be said on that.

Second, each side gains a genuine political benefit. As a practical matter, to get the wall, the Republican base will need to continue its support for this administration. Contrary to abandoning his base with this compromise, Trump and his base will remain in a symbiotic relationship: Without Trump, or a like minded Republican candidate, there will be no wall. This also means that for Trump, or a successor Republican candidate, the wall itself will remains a critical commitment moving into 2020 general election, albeit without the façade that anyone other than US taxpayers will fund it. If Trump or a Republican successor supporting the wall wins in 2020, and if he also wins either the popular vote or control of the House, he and his base get the taxpayer-funded wall. If the Democrats are correct in insisting that there isn’t political support for the wall, they can prove that by (1) convincing a majority of US voters in the general election, and (2) retaining control of the House in 2020.

Third, this proposal raises the stakes for our politics in 2020. From my perspective, that’s as it should be. The stakes of the shutdown and concerning the wall are real. It is past time to create a mechanism by which it can be resolved without continuing to hold 800,000 federal employees, and so many more, hostage. The proposal also allows for additional time—two years—for those who might be affected with eminent domain over border properties to engage in appropriate planning. Almost certainly, any approved wall funding would not result in construction within a shorter time span given the need to acquire the lands, and contrary to delaying the wall commitment, if the proposal were approved, along with expedited use of eminent domain, that would facilitate a smoother process for construction once it actually commences.

To be sure, there are important questions that would need to be resolved: (1) what would the funding commitment be?; (2) how can Congress best structure a contingent authorization and appropriation; (3) how can Congress best structure this to prevents it from being undermined by a future Congress; and (4) how can this best be structured to allow the possibility, which, although seemingly remote today might be less so with a functioning government, that over the next two years, both sides might achieve an alternative mutual accommodation that renders this compromise no longer necessary. For now, my overriding goal is simply to demonstrate a framework with which to create pathway forward. Our nation needs it.

I welcome your comments.

[Postscript for lawyers: The proposal might appear in tension with Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983), disallowing a one house veto. It is not. The compromise does not empower action by a single house of Congress. Instead, in the event that the electoral college and national popular vote do not coincide for a candidate seeking the wall, it merely conditions the release of wall spending on which party the nation's voters give control of the House.]

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