Close the Border? Comes with Risks, But Worth Considering

What do you know?  President Trump is considering closing the southwest border, as an estimated 100,000 illegal aliens entered in March.  Declaring the “national emergency” – or a tipping point requiring executive action – permits him to reprogram money to the wall – but walls take time.  Closing the border, by contrast, is a fast act.  It comes with risks.

Mexico is – and has been – a good and bad neighbor.  On one hand, Mexico is our third largest agricultural export market, buying nearly $20 billion in US agricultural products, from soybeans and dairy to beef, fish and lumber.  Meanwhile, we are Mexico’s largest trading partner, buying roughly 80 percent of their exports.  We also cooperate on law enforcement, regional security and in a host of other ways.

That said, of late, Mexico could be doing more to protect their southern and northern borders from criminal and refugee inflows. By protecting their southern border more effectively from Central American caravans, drug and human traffickers, they would be – in effect – be protecting our southern border more effectively. 

President Trump obviously feels the Mexican Government can do more – and so can the Central American Governments.  He has summarily cut off aid to parts of Central America, which may or may not produce the outcome he intends.  He is threatening to close the US-Mexican border, if Mexico does not lean-in and help more to stem the flow of northern migrants.  

Historical perspective is often lost, but helps in such moments. Presidents Reagan, Nixon and Johnson each closed the US-Mexico border, to good effect.  Future threats to close it were taken seriously; bilateral relations were not irreconcilably damaged.  

Responding to Reagan and Nixon, Mexican authorities recognized the US was serious, and worked harder to coordinate on drug trafficking issues.  Both presidents also engaged their diplomatic teams – intensely – at the same time.  Johnson closed the border for security reasons after the Kennedy assassination.  So, this is not new.

Several questions top the moment.  Does President Trump have legal authority to do this?  How would it be operationalized?  What trade, diplomatic and security impact would the move have? How long would it last?  What is the best outcome?  And how do we get there?

In order, answers.  The President has constitutional and statutory authority to close our ports of entry.  Under Article II powers and 8 U.S.C, 1185, the President can close US borders.  The law reads in relevant part, under Section 212 (f), which dates to 1952:  “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”  So, the President has the authority.

How would he operationalize the move?  A combination of military and civilian law enforcement plus-ups would help.  New personnel – a surge – could occur at a crossing, half a dozen, or all of them.  Of course, realism is needed.   Trafficking corridors – tracts between points of entry – are theoretically closed, so personnel would go to official crossings.  We do have military personnel for the surge, but only for a limited period.   If the goal is serious Mexican collaboration to help stop human and drug trafficking, diplomatic efforts must occur behind the scenes, with intensity.

Can President Trump use a trade lever to secure a security advantage, as elsewhere?  Yes, he could.  He certainly could – but with risks.  Mexico might not respond in a constructive way.  If the border closing was pervasive and extended, their people would suffer, and so would we – although not as much. 

Reduced US-Mexico trade would – at least nominally – hit US businesses (especially agriculture) and – likely on higher prices – US consumers.  True, impact in the US would be modest by comparison to impact on Mexico, but Mexican authorities – if not brought around fast – would blame the US for political fallout on their side.  Political effects in the US would be a crap-shoot, positive in near term, negative over time.

Count on court challenges, on sundry legal bases, from disaffected businesses to political actors, and ardent anti-Trump activists.  Those suits would cut both ways, reinforcing the President’s resolve, elevating his commitment to border security, but perhaps disadvantaging him with moderates and independent voters.  Of course, he is likely to encounter a wild hare – some irreverent, indignant 9^th Circuit judge, ready to reverse policy on a squirrelly doctrine.

As one thoughtful observer noted, “in any contest of wills between the president and the lower courts, in the end the Supreme Court would likely underscore the proposition that no sitting judge is reasonably poised to substitute his or her judgment for that of the chief executive in matters paramount to the safety and security of our country,” but that might take time.  Thus, “the more interesting question is what would happen between any injunction issued or sustained at the district or circuit court level and a ruling by the Supreme Court?”  Who knows? 

All this comes back to diplomatic, security and political calculus.  Our border is sacred, being violated, and needs to be protected.  Our way of life is affected by law-breaking illegal entrants, some of whom have claims to asylum, most of whom do not.  Our economy is the toast of the town, so many want in – or at least access to our entitlement programs.  What is to be done?

The border problem is big, real, and vexing.  The political impact of closing the US-Mexican border would be significant and immediate – for both countries.  Nevertheless, closing it might send a profound signal.  Disruptive impact on Mexico would be bigger than on the US, even if at a price.  But the outcome sought would be lost, without aggressive, backroom diplomacy. 

President Trump should have a list of objectives, including aggressive Mexican policing of southern and northern borders, higher levels of cooperation between federal law enforcement agencies, tailored information sharing, offers of law enforcement assistance, attention to legal and humanitarian issues, and outcomes to make the border closing meaningful.  

In short:  The potential for a border closing – and actual shutdown – could be effective tools for leveraging Mexican cooperation, coordination, commitment and results, but the closing alone will not do it.  Diplomacy – together with an eye on trade effects – is needed. 

Three presidents have done it.  Closing the border would generate a short window for intensely rethinking border concerns, law enforcement cooperation, diplomatic relations, and the security relationship between the US and Mexico.  A prolonged border closing would be a self-inflicted wound, affecting both economies adversely, taking more time to heal than to inflict and endure. 

The best course might be this:  The threat of closing is real, and President Trump is understood to mean what he says.  Nevertheless, our two countries have a great deal in common, an enormous amount – shared cultural emphasis on faith and family to hard work, horrific hurricane seasons, drug and human trafficking conundrums.  The best way out of this deep ditch is to cooperate.  The best time to do so is now.