President Trump may stumble on an unexpected obstacle as he tries to build a wall along the Mexican border: Antonin Scalia.
This may seem surprising, considering that Mr. Trump has called him a “great” justice. But in one of his last opinions, Justice Scalia supplied a powerful weapon to resist Mr. Trump’s plans for a border wall.
Justice Scalia’s June 2015 opinion in Michigan v. Environmental Protection Agency may not seem helpful at first sight. It blocked an E.P.A. rule that would have limited mercury emissions from power plants. The Clean Air Act instructs the E.P.A. to issue “appropriate and necessary” regulations, and Justice Scalia said that language required the E.P.A. to consider the costs of its proposed rules, which it did not properly do. “No regulation is ‘appropriate’ if it does significantly more harm than good,” Justice Scalia wrote. And even though the final vote in the case was 5-4, all nine members of the court agreed that the E.P.A. could not ignore the costs of its actions when deciding whether or how stringently to regulate.
Why is Justice Scalia’s opinion an obstacle to President Trump’s wall-building plans? Mr. Trump is reported to be planning to rely on a law called the Secure Fence Act of 2006 as a source of statutory authority for the wall — apparently to avoid asking Congress to pass a new statute, which could be filibustered by Senate Democrats.
But the 2006 law authorizes the secretary of homeland security only to take actions to secure the border that are “necessary and appropriate.” These are the same words (in the opposite order) the Supreme Court interpreted in Michigan v. E.P.A. As Justice Scalia said, it would not be “appropriate” to “impose billions of dollars in economic costs in return for a few dollars” in benefits.
President Trump’s proposed wall would certainly cost billions of dollars: He says $8 billion, while more realistic estimates put the price tag at $15 billion to $25 billion (and $500 million per year for upkeep).
What about the benefits of the wall? First, it won’t keep many aliens out. No matter how high the wall is, it won’t stop smugglers from tunneling underground, as many have already done to get past existing border fences. Moreover, the wall won’t stop a majority of unlawful immigrants, who now enter the United States on visas that they overstay.
Indeed, research indicates that border barriers are more likely to keep unlawful immigrants inside the country from exiting than to prevent people from entering. Even John Kelly, President Trump’s pick to head the Department of Homeland Security, said during testimony that a wall “in and of itself will not do the job.”
Second, even if the wall does lower the number of unlawful immigrants in the United States, the economic gains from reducing illegal immigration are not greater than the cost of the wall. In fact, the economic effects would quite likely be zero or negative. Illegal immigrants pay billions of dollars in taxes, purchase goods and services, and enhance American productivity in sectors such as agriculture. A 2012 study published by the Cato Institute concluded that the gross domestic product would decline by roughly 1.5 percent — or $2.6 trillion over a decade — if we pursue a program of mass deportation and block undocumented immigrants from returning. Similarly, a study commissioned by The Wall Street Journal last year concluded that Arizona’s economy was on average 2 percent smaller per year because of the large-scale departure of undocumented immigrants from 2008 to 2015.
One of President Trump’s major claims is that a wall would keep out illegal immigrants who commit violent crimes. But there is no evidence that illegal immigrants commit crime at a higher rate than citizens, and so no reason to think that the crime-related benefits are substantial enough to justify the cost of the wall. No court could reasonably hold that it is “necessary and appropriate” to spend billions of dollars to achieve benefits this doubtful.
Mr. Trump says that Mexico will pay for the wall, implying that the actual cost to the United States will be zero. But the statute doesn’t authorize Mr. Trump to charge Mexico, and Mexico says it will not pay. A judge would therefore give no weight to this argument.
A court challenge to President Trump’s wall-building plans would need a plaintiff who meets the legal standing requirements. Plenty of people satisfy those criteria. Farmers in the Rio Grande Valley in Texas might sue on the ground that the wall would disrupt their water access. Or the state of California might sue to stop a wall-building effort that it thinks will hurt its own citizens.
The problems that Michigan v. E.P.A. create for Mr. Trump’s agenda extend beyond the wall. Numerous statutes contain similar language requiring agencies to take “necessary” and “appropriate” actions, or other language requiring agencies to take into account costs. While the legal details are arcane, Justice Scalia’s ghost may also block Mr. Trump’s efforts to eliminate climate regulations and deregulate the financial industry. Courts will look askance at regulators who tell them they want to eliminate regulations that, a few years ago, they insisted were cost-justified. The same rules that apply to regulation apply to deregulation as well.
President Trump promises to appoint a Supreme Court justice “very much in the mold” of Antonin Scalia. And yet Justice Scalia’s cost-benefit jurisprudence may put Mr. Trump in a bind. Applause lines at campaign rallies would not have swayed Justice Scalia and will not impress current judges. If President Trump wants to enact his agenda, he will need to drop the bluster and explain why his policies do more good than harm.
Posts
No comments:
Post a Comment