Trump's emergency declaration - a mistake?

February 17, 2019

For the most part, American immigration patriots are overwhelmingly distressed over President Trump's February 15, 2019 signing of the omnibus spending bill. The White House said Trump was backed into a corner. He didn't want to force another government shutdown, so he accepted "compromise" legistration put together behind closed doors by open borders Democrats and open borders / incompetent Republicans. The bill codified a number of policies disastrous for immigration enforcement. See: Insane open-borders provisions in the amnesty omnibus bill - unspeakably awful.

Trump then enacted a state of emergency in order to build the wall and secure America's southern border. However, that might not have been such a good idea, as the following articles point out.

 

Trump’s Immigration Policy Is the Worst of Both Worlds, by Gregory Hood, American Renaissance, February 16, 2019:

On Friday, President Trump signed a “compromise” immigration bill that guts immigration enforcement and repudiates his own powers. Among other harmful provisions, the bill creates a loophole that prevents the deportation of anyone sponsoring (or claiming to sponsor) an “unaccompanied” illegal alien minor, provides more permits for foreign seasonal workers, and gives foreign nations about $50 billion in aid—nearly 40 times what is spent on America’s own border. The bill also prohibits the construction of a wall unless local authorities approve, which is unlikely in border areas Democrats control and that drug cartels influence politically. Though President Trump blustered at a Friday press conference, this was an act of staggering weakness and betrayal of his base....

President Trump is concealing this defeat by declaring a “national emergency” to obtain money to build his long-promised border wall.... President Trump’s own statements make it likely it will be blocked in the courts....

The state-of-emergency declaration is worse than a crime; it is a mistake. President Trump did not need to issue the declaration to build the wall. Under federal law 10 USC 274/284, President Trump could have ordered fence construction without a state of emergency. He was urged to do this by Congressman Mark Meadows, among others. Dissident-right podcasters at Fash the Nation also discovered Public Law 85-804, which gives the president wide powers to enter into contracts for the “national defense” without regard to Congress. President Trump could also simply order the military to secure the border....

President Trump has not advocated any of the measures that would force Mexico to “pay for the wall.” He has not mentioned a remittance tax....

Instead, President Trump has chosen the route that will create the maximum amount of opposition both in the courts and among the public. President Trump’s declaration that “I didn’t need to do this” also undermines his own action....

President Trump has great political instincts when it comes to identifying issues that could motivate potential supporters. Yet he is no strategist; he is something of an anti-strategist....

President Trump also did nothing to challenge the technology companies deplatforming his supporters or to confront the antifa gangs attacking them in the streets. His supporters will be far less prominent online during the 2020 campaign because of censorship on Twitter and Facebook....

Instead of President Trump shifting the Overton Window in the direction of immigration enforcement, his presidency’s main effect has been to push the Democrats in the position of open borders....

Thanks to all the loopholes in the bill the president has just signed, “the wall,” even if it is ever built, is now what the Democrats have claimed all along—a pointless waste of money.*...

Politically irrelevant, he matters metapolitically, and his rise showed that there is a vast white constituency hungry for nationalist policies and opposition to mass immigration, globalism, and political correctness....

* Actually, it is likely that securing America's border will be money well-spent for the following reasons:

  • The wall / fence / barrier will signal to the world that America is a sovereign nation which is finally serious about securing its borders.
  • The wall (coupled with appropriate border technology and manpower) will markedly slow down illegal entry into the United States.
  • It will significntly reduce illegal alien trafficking across the border, including trafficking of women and children as part of the sex trade business.
  • It will greatly reduce the reach of Mexican cartels into America.
  • It will vastly reduce the amount of dangerous and illegal drugs entering into America.
  • It will negatively impact the elites' and Democrat party's agenda of dismantling America via importing a new class of voters.

 

Hold the hysteria over Trump’s emergency declaration, by Paul Mirengoff, Powerline, February 16, 2019:

President Trump’s decision to declare a national emergency and move funds around to pay for more wall building is certain to be challenged in court. The case almost surely will arrive at the Supreme Court.

When it does, Trump may not have five votes. Chief Justice Roberts, and conceivably others among the five center-right Justices, may be quite skeptical of this use of executive power as, indeed, are a number of conservative commentators.

I haven’t studied the matter sufficiently to have an opinion. Moreover, there are lawyers and scholars whose opinions will be better informed than mine, once I reach it.

I found Jack Goldsmith’s initial take worth reading... Goldsmith dismisses liberal hysteria that Trump is sparking a constitutional crisis and/or threatening the rule of law. Quite clearly, Trump is doing neither. As Goldsmith says:

Everything Trump proposes to do purports to be grounded in congressional statutes and much of what he aims to do does not rely on emergency power. Trump is not relying solely on Article II executive power, and he is not invoking executive power to disregard a congressional statute. Moreover, the statutes in question expressly give Trump authority in the areas in which he claims them....

Presidents have always—really, always—had discretion to decide if there’s an emergency. And presidents have often declared emergencies under circumstances short of necessity, to address a problem that does not rise to an “emergency” as defined in common parlance to mean “a serious, unexpected, and often dangerous situation requiring immediate action.”...

... Trump is using this aggressive gambit to make an end run around a Congress that did not give the president what he wanted? Again, says Goldsmith, this is common:

Scholars and commentators during the Obama era justified highly imaginative uses of executive power precisely because Congress was deadlocked. Remember the Iran Deal, the Paris Agreement, the Libya intervention, and the expansions of Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)?

In this case, though, Congress wasn’t deadlocked about the wall. It reached a compromise. This, I think, may be the biggest problem for the administration in court. (Note, however, that the compromise deal expires in September, so that Congress may again be deadlocked by the time this case reaches the Supreme Court).

Goldsmith sees other problems. He notes that Trump’s own statement yesterday that he didn’t need to do this undercuts his claim of emergency. ...

 

In the following article, TV host Mark Levin identifies aspects of the deeper problem that lead to the emergency declaration:

If the president triggers the National Emergencies Act of 1976..., by Mark Levin, February 15, 2019:

 

Leftwing media and RINOs don’t represent the GOP. Nor are they defenders of the Constitution. The National Emergencies Act of 1976 was created by Congress. It has been used scores of times. The media never cared. The RINOs never said a word before. Nor did they act to repeal it. Now they object?...

Many of the same Republicans whining to the leftwing media today have been in office for years and tolerated if not passively supported the current state of immigration chaos. Furthermore, none of these RINOs did anything legislatively that stopped the blatantly unconstitutional Obama/Democrat DACA, which they now support or, again, effectively tolerate, along with sanctuary cities and lawless judges who protect them....

While the National Emergencies Act of 1976 should be rarely used for real emergencies, it has in fact been used over fifty times without controversy. The fact is the leftwing media and the RINOs do not view illegal immigration and the cumulative importation of millions of aliens into our country in violation of federal law as a big deal.... The president rightly does view it as an emergency. The law itself, as used by the president, does not violate separation of powers in this instance as it is applied quite narrowly, with the president moving around funds which he is empowered to do, again by Congress.

Meanwhile, the leftwing media and the RINOs don’t mind at all the creation of the entire massive bureaucracy and the delegation of law-making to it by Congress, over the period of the last century, which delegation has always violated separation of powers. We now call it the administrative state or swamp. Not a single conservative in Congress has even tried to do anything effective about it....

 

A similar article blames Congress for the mess it has created:

Why Trump will win the wall fight, by Jonathan Turley, opinion contributor, The Hill, February 16, 2019:

Justice Oliver Wendell Holmes once said, “If my fellow citizens want to go to hell, I will help them. It is my job.” He was expressing the limited role of courts in challenges to federal law. It is not the task of judges to sit as a super legislature to question the agendas of the political branches. They will gladly send Congress to hell. It only needs to point to the destination.

In the matter of the border wall, Congress could not have been more clear where it was heading. It put itself on the path to institutional irrelevancy, and it has finally arrived. I do not agree there is a national emergency on the southern border, but I do believe President Trump will prevail. This crisis is not the making of Donald Trump. This is the making of Congress.

For decades, Congress frittered away control over its authority, including the power of the purse....

Congress has the authority to rescind the national emergency declaration of Trump with a vote of both chambers. The legislative branch should do so. If Congress cannot muster the votes, however, a federal judge is unlikely to do so. Simply put, the courts were not created to protect Congress from itself. Congress has been heading to hell for decades, and it is a bit late to complain about the destination.

 

Here are two more articles exploring the legal aspects of Trump's emergency declaration:

How Congress and President Obama Made Trump’s Wall Possible, Lawfare, February 15, 2019.

What Authorities Is President Trump Using to Build a Border Wall?, Lawfare, February 15, 2019.

 

These articles portray a less pessimistic picture:

Did Trump Save His Presidency? Maybe—IF He Doesn’t INCREASE Legal Immigration, VDare, February 18, 2019.

Why Did Trump Have To Declare An Emergency? Because Congress Won't Do Its Job!, Patrick J. Buchanan, VDare, February 18, 2019.

 

At this point, two things are abundently clear:

  1. It was Trump - and only Trump - who brought the immigration issue to the forefront during his presidential campaign. And it is Trump - and for the most part only Trump - who is continuing to press the issue of Securing America's border.
  2. Securing America's border will be the predominant issue of the 2020 election. And that's a good thing.