Jurisprudence

Trump’s Border-Wall Infomercial Couldn’t Have Been Less Effective

President Donald Trump speaks to the nation from the Oval Office.
President Donald Trump speaks to the nation from the Oval Office of the White House on Tuesday in Washington.
Kevin Dietsch-Pool/Getty Images

Now that the dust has settled from Donald Trump’s Oval Office speech selling his government shutdown for a border wall on Tuesday night, one thing is clear: He blew it. He blew it for a thousand reasons, including his strange flat affect, the words-read-in-proof-of-life-video cadence, his crucial factual misrepresentations, and how he bore the burden of persuasion and just didn’t persuade. It was a failure of negotiation, a failure of policy, and most catastrophically a failure of television. No episode of The Apprentice featuring such a mediocre performance and boring reveal would have ever made it to prime time.

But amid all the legitimate bellyaching about whether the major networks should have agreed to carry a non–news event delivered by a serial fabricator, many may have missed the bigger victory: Two years into the Trump administration, the center seems to have held. Something that looked like normal prevailed. Tuesday night proved that something is checking this out-of-control president. Trump spent several days prior to the prime-time Oval Office address laying the groundwork for a plan to declare a state of emergency at the southern border and unilaterally employ a “military version” of eminent domain to seize private land along the border to build his wall without congressional consent.

Whether the president could have done any of that is in dispute. The academy spent the weekend debating the president’s legal authority to make such a move, but it is an open question. Trump certainly could have tested this insane new challenge to our democracy in courts, as he has done time and again before. Yet somehow it looks like, for now at least, Trump blinked. Somewhere, a legal adviser must have told him that he didn’t have the clear authority to do what he planned to do, or that the legal risk was too high, or that he would be entering a yearslong quagmire of litigation that he might not win. And apparently, he listened. So instead of doing what he did when he announced his Muslim ban, or his transgender ban, or when his administration started unlawfully taking children from their parents at the border, or any number of his other misguided legal proclamations, Trump opted to stand down. Instead he went with the b-roll—an Oval Office infomercial for helping poor migrants at the border by paying for a wall to keep them out, because they’re actually probably horrible violent criminals. Indeed, but for the toll-free number on the bottom of the screen and all the xenophobic talk about “killing, beheading, and dismembering,” it came across more as a lengthy pitch for a humanitarian aid charity than an announcement of an imminent national security crisis.

It wasn’t necessarily going to go this way. For days prior to the speech, the president had signaled his intent to declare a national state of emergency. “We’re looking at a national emergency because we have a national emergency. Just read the papers,” Trump told reporters on Sunday. Over the weekend, legal experts debated whether Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, or Bruce Ackerman of Yale Law School had the better of the claims around the scope of the president’s legal authority to make such a declaration. The question, it seemed, would ultimately come down to what the Supreme Court might determine. But as all that academic analysis was happening, a funny thing also occurred: Conservative thinkers actually recognized the enormous threat to our constitutional system that such an emergency declaration without an actual emergency would pose. Former Judge Andrew Napolitano, for one, explained on Fox News how under the system Trump is proposing, Barack Obama might have declared a state of emergency to address health care reform, “but obviously he didn’t, because he couldn’t.” David French agreed. Jonah Goldberg argued that it would be catastrophic for Trump to arrogate such powers to himself. Senate Republicans seemed to concur, with obvious hedges: “I’m confident he could declare a national emergency,” Sen. John Cornyn told CNN. “But what that may mean in terms of adding new elements to this, in terms of court hearings and litigation that may carry this on for weeks and months and years. To me, injecting a new element in this just makes it more complicated.” Sen. Susan Collins of Maine added that although the law provides the president with emergency powers, “the administration should not act on a claim of dubious constitutional authority.” Again, surprisingly, Trump seems to have listened.

For two years, those of us who bemoaned the hemorrhaging rule of law, and the demise of the legal guardrails that constrain normal presidents, have worried that what’s holding our constitutional democracy together is actually only norms, not laws, and that each time this president does whatever damn Calvinball thing he wants, the courts must clang painfully into gear in a lumbering response to his whims. Even if he loses more often than he wins, the result has been a perpetual shock to the legal system and palpable harms to real people as the cases grind forward. But Tuesday night, the opposite seems to have happened: The soft power of legal norms and the warnings (or lack of enthusiasm) of his closest boosters, including his own White House counsel, seem to have spooked the president into standing down. That is how normal constitutional democracies function, but it’s been such a foreign occurrence in recent years, we almost didn’t clock it when we saw it.

To be certain, Trump isn’t done threatening to declare a state of emergency and dare all of us to just deal. On Wednesday, he told reporters in the Oval Office that he maintains “the absolute right to do national emergency if I want,” adding, “My threshold will be if I can’t make a deal with people that are unreasonable.” Now, in some sense, the legal threshold for determining whether a national emergency exists is usually not failure to have your political demands met. But the statement suggests that the president, who stormed out of a meeting with Democratic congressional leaders Wednesday afternoon, is still not above going it alone. He may yet just declare an emergency to be able to tell his base he did everything he could to get his wall and chance it in the courts. Even still, it’s refreshing to witness the president backing away from a demented theory about boundless executive power rather than immediately taking it out for a test run to see how fast it will go. Since the president was inaugurated two years ago, that hasn’t happened as often as it should.

For the folks who maintain that strong institutions remain the best check on this presidency, even as Trump corrodes and corrupts those institutions daily, it’s heartening to see Congress, the courts, and even network television beginning to morph so as to better respond to these attacks. On Tuesday, Trump demonstrated that he isn’t quite as good at TV as he once believed, he’s not terribly gifted at policy or negotiation, and he’s more frightened by soft legal norms than he’s previously let on. A year ago, we doubted whether any of our institutions would survive Donald Trump. More and more, it appears they may be tougher than they looked.