There is a famous quote from a time in which Italian governments were notoriously unstable to the effect that the situation was desperate, but not serious. That is a pretty good description of how I feel about the emergency and the wall.
Judicial battles over the emergency powers of the executive go back as far as Charles I and the ship money case. It is likely that Supreme Court will ultimately decide this one, and that the decision will be an important precedent. And yet, this does not feel like a real constitutional crisis, because nothing meaningful is at stake. The emergency is a sham, and the wall is a joke.
The case will resemble the Youngstown Sheet and Tube case from the Korean War era, with two important differences: first, the emergency in the Youngstown case was genuine; and second, Trump’s argument will (if his lawyers aren’t suicidal) be based on a 1976 emergency statute, not on his supposed inherent rights as commander-in-chief. The first distinction works against him; the second is in his favor.
In the long run, it is the degree of deference to the executive that the Supreme Court displays in the face of the patently bogus emergency that is going to make the biggest difference in the workings of our system. There is a second, and more narrow argument, however, as to the interpretation of the relevant statutes that may ultimately determine the outcome of the case. Standing will also undoubtedly be an issue, as well.
If Obama were president, the wall would be DOA. He isn’t, so I’m not making any predictions on a winner. There is one sure loser, however–Mitch McConnell. If Trump prevails, the next Democratic president will have more latitude to ignore Republicans in Congress; if he loses, then McConnell also loses by aligning himself with him in the battle.