President Donald Trump’s cave-in on the government shutdown is deeply disturbing and marks almost the first major misstep in his otherwise hugely successful presidency.
But there is a way to redeem himself.
His threat to declare a state of emergency might be too far a reach and not be sustainable in court.
But how about invoking 10 U.S.C. section 284 which appears to give the president and the Defense Department the power to build the wall anyway?
Section 284 provides that the Secretary of Defense “may provide support for the counter-drug activities or activities to counter transnational organized crime” by measures that can include the “construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.”
The DOD’s authority under Section 284 to construct fences appears to extend only to “drug smuggling corridors.”
This limitation may only permit the construction of the wall in certain places, but there appears to be no statutory definition of what constitutes such a corridor.
While negotiating for a full wall, which requires congressional authorization, he could proceed to construct the section 284 wall in drug corridors.
Obviously, opponents would go to court to seek an injunction to stop the construction.
But, if the president, the DEA and the DOD can provide evidence that the locations for the wall are, indeed, drug corridors, the construction should be allowed.
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