Michael Dorf: Why Should Mexico Pay for Trump's Wall?

Border Patrol agents on horseback near the U.S.-Mexico border fence in Jacumba, California on November 14. Michael Dorf posits if the U.S. can get away with forcing Mexico to pay for U.S. spending projects, why stop there? Why not make China, Canada and other countries pay too? Mike Blake/reuters

This article first appeared on the Dorf on Law site.

During the presidential election campaign, criticism of Donald Trump's proposal to build a wall along the U.S. southern border and make Mexico pay for it took various forms.

They included skepticism about the cost; doubts about efficacy. given the possibility of scaling the wall via ladders and ropes, or burrowing beneath it via tunnels; and doubts about Trump's ability to require Mexico to foot the bill, especially since Trump's meeting with Mexican President Enrique Peña Nieto, when the latter flatly told Trump that Mexico would not pay for the wall.

The last question—about payment—was revived recently, when Trump sought financing for the wall from Congress. When critics objected that this was contrary to his campaign rhetoric, Trump took to Twitter (of course) to explain that Congress would, in effect, be providing mere bridge funding until Mexico provides the U.S. with reimbursement.

That tweet in turn restarted the debate on how Trump would extract billions of dollars from an unwilling Mexico to fund his wall.

Would he impose tariffs on Mexican goods? Higher tolls on border bridges? Taxes on remittances? Such ideas are discussed in a recent article in the Jared Kushner–owned official state newspaper of the country, formerly known as the United States, perhaps soon to become known as Trumpmenistan. The New York Observer/Pravda story bore the Trump-friendly headline "Yes, Donald Trump Can Make Mexico Pay for the Wall."

I am willing to stipulate that Trump (with the aid of Congress) can make Mexico pay for the wall. But the question of how to get Mexico to do so tends to crowd out a different, perhaps more basic question, which seems to go largely unasked in discussions of financing Trump's wall: Why?

Even if one assumes that building a border wall is sound policy, why should Mexico have to pay for it?

One answer might be because the U.S. can get away with forcing Mexico to pay. But that answer alone doesn't survive inspection, because there's no reason for limiting payment just to the funding of the wall.

Why not tax remittances for undocumented (and documented?) Mexican immigrants at a high enough rate to pay for other Trump priorities, like infrastructure projects in the country's interior? Or, after the new GOP-led Congress rejects such projects, tax cuts for the super-wealthy?

If the U.S. can get away with forcing Mexico to pay for U.S. spending projects, why stop there? Why not make China, Canada and other countries pay too?

The notion that Mexico should fund the wall appeals to a different, or at least supplemental, sort of logic beyond might makes right: Mexico should pay because the wall is needed to address a problem that is Mexico's fault. Along this line of logic, since Mexico is funneling crime, drugs and rapists into the U.S., it should fund the wall's construction to keep out the bad actors.

Although I freely admit that the following analogy is not perfect, and could conceivably be seen as explosive, in thinking about this Trumpian logic I was reminded of Paul Johnson's magisterial 1987 book, A History of the Jews, particularly his description of the first European ghetto, in Venice. (The word ghetto—a term of uncertain etymological origin that describes a selected, segregated area—may derive in part from the Venetian ghèto.)

Johnson writes that the immediate motive for Venice's ghettoization was the influx of over 5,000 Jewish refugees, many of whom had been expelled from Spain and Portugal. Sermons by Franciscan and Dominican friars demonized both the new arrivals and the long-standing Venetian Jewish community.

Confining Jews to the ghetto was seen as a somewhat milder remedy than expulsion from Venice. The authorities then turned to practical concerns. As Johnson writes:

The spot chosen was . . . formed into an
island by canals, equipped with high
walls, all windows facing outward bricked
up, and two gates set up manned by four
Christian watchmen; six other watchmen
were to man two patrol boats, and all ten
were to be paid for by the Jewish community,
which was also instructed to take out a
perpetual lease of the property at one-third
above the going rate.

Not only did Venice build four walls and make the Jews pay for them, the Venetians turned a profit in the bargain. Perhaps Trump can learn a thing or two.

To be clear, in invoking this comparison I do not mean to say that Trump's wall aims to make a ghetto of Mexico, but there are a couple of disturbing parallels between the Venetian ghetto walls, which were built almost 500 years ago, and the wall that Trump proposes to build in our time.

First, is the lying. Trump lies about so many subjects that it's almost too easy a point of comparison, so I should be clear that I don't just mean lying in general, but the nature of his lies.

Trump's various campaign statements about undocumented immigrants and criminals being sent by Mexico across the southern border earned him four Pinnochios from The Washington Post. His focus on illegal immigration ignores the fact that the population of undocumented immigrants in the United States has been stable, not increasing, for the better part of a decade.

Although some undocumented Mexican immigrants do, of course, commit crimes—as do some other immigrants, tourists and citizens—substantial evidence indicates that undocumented immigrants are less likely to commit crimes than the baseline population. In fact, their addition to the population lowers, rather than elevates, crime rates.

Trump's incendiary and dishonest rhetoric that launched and sustained his campaign served something of the same function for his most ardent anti-immigrant supporters, just as blood libels served the medieval anti-Semites whose agitations led to the ghetto.

Second is the idea of collective responsibility. Even in his original "They're bringing drugs" speech, Trump repeatedly elided any distinction between what the people escaping Mexico were bringing to the United States and whom and what Mexico was supposedly sending to the United States. He went on to state that the problems were coming not only from Mexico, but from "all over South and Latin America, and . . . probably from the Middle East."

Nonetheless, Trump did not propose that the countries from which undocumented immigrants originate each pay their pro rata share for the cost of constructing and maintaining the wall. Mexico must foot the whole bill.

One has the sense that for Trump, everyone coming over the border is, in some sense, being "sent" by Mexico. Just as the Jews of Venice had been left to sort out collecting the funds to hand over to Venetian authorities, one imagines Trump leaving to Mexico the task of proceeding by way of indemnification against other countries from which undocumented immigrants originate. No doubt he considers them all sufficiently similar "others," such that a tax on any is a tax on all.

Notions of collective responsibility appear elsewhere in Trump's ugliest rhetoric, especially in his discussion of Muslims. There was, of course, his call to kill family members of terrorists, regardless of any complicity. And spreading collective responsibility community-wide, Trump twice asserted—after the San Bernardino shootings and the Orlando nightclub attack—that the entire American-Muslim population was responsible in choosing not to prevent such terrorist acts.

In the latter instance, he said of the people likely to perpetrate terrorist acts, "Muslims know who they are, largely. They know who they are. They have to turn them in. They know who they are. They see them." That statement combined a group libel with the imputation of collective responsibility.

To return to the puzzle with which I began—why should Mexico pay for the wall?—we see that the logic of Trump's implicit answer resonates with his most despicable views and political instincts.

Preposterous as it was when considered as a policy proposal, Trump's plan for a southern border wall always made a kind of deranged sense as the psychological centerpiece of his campaign.

Michael C. Dorf is the Robert S. Stevens professor of law at Cornell University . He blogs at dorfonlaw.org.