The President's Emergency Declaration

By Dan Cadman on February 19, 2019

At about the same time President Donald Trump signed into law the abysmal consolidated appropriations act (see here, here, here, and here) to fund the Departments of Homeland Security and Justice and a few other federal entities for the remainder of this federal fiscal year, he announced that he would be declaring a national emergency to fund a physical barrier on our southern border.

In fact, concurrent with signing the appropriations bill into law, he issued a statement in which he interpreted portions of the act consistent with his understanding of the executive branch's powers. The statement makes clear that the president and his advisors believe that in a variety of areas, the bill — which is littered with "thou shalt nots" in its attempt to bind presidential action or disbursement of the funds — tramples on his constitutional authorities.

The news media reacted quickly and for the most part negatively. Much, for instance, was made of the president's extemporaneous remark, "I didn't have to do this" as proof that there was no real emergency, that it was a put-up job (see here and here). I suppose it's a matter of interpretation — whether you choose to believe the worst of the man, who is not known for his eloquence — but I don't read that into his words at all. I understand it to mean, "I wouldn't have had to do this if Congress had acted responsibly, but since they didn't, here we are, and I can't afford to wait any longer."

USA Today went so far as to trumpet from a headline, "National emergencies are common; declaring one for a border wall is not". What are we to make of such stuff? If emergencies are that common, are they, in fact, emergencies, or do they more likely reflect a lack of planning and foresight among our governing elite, who cover themselves through reiterative emergency declarations?

And if a border wall declaration is uncommon, is that not a good thing? Perhaps it ought to have been done some time ago, but our leaders don't want to admit that they lost control of our borders a long while back. Most disheartening, at least to me, is the number of conservative writers who are wringing their hands over the declaration and predicting constitutional ruin.

As quickly as the news media moved in, so did the Democratic opposition in Congress. House Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer issued a joint statement condemning the president's declaration as "lawless". Pelosi then went on to suggest that Trump taking such action would serve as a template for other, future presidents with "different values", for instance to implement national gun control.

Which is it, Madam Speaker? Lawless or a model for the future? You can't have it both ways. If it's lawless, as she asserts, it should not be replicated, ever. But she missed the mark anyway, in blaming Trump for being the first to abuse executive declarations that will inevitably serve as a template for future presidents. The one who did that was Barack Obama with his "pen and phone" executive actions, also having to do with immigration, something I'm sure she deliberately elided over.

But if there is a difference, and I think there is and it's a signal one, it is that Trump is relying on statute to do what he has done. One may not like the use it's been put to, but at least there is a colorable authority on which to base his declaration, which can be seen here.

By contrast, Obama based his exercise of power on a vague theory of "prosecutorial discretion", which he then turned neatly on its head to make enforcement of the law the exception rather than the rule for hundreds of thousands of aliens illegally in the United States. Doing so was not only a subversion of the law but an egregious abuse of discretion from which the immigration system has yet to recover.

It doesn't stretch credibility to trace our current crisis to that act. Connecting the dots, one can reasonably argue that it's not a coincidence that the dramatic rise in the number of minors, and thereafter women and partial families — the ones now illegally entering in the tens of thousands — began at about the same time that the Obama administration started to make clear that it was going to do its own end run around Congress, first by ignoring the law, then by creating its own administrative amnesty. Thus began the stampede.

Those on the left (and right) who oppose the use of an emergency declaration point out some things as proof that no emergency exists that don't hold up when carefully considered.

First, they observe that much of the cross-border drug smuggling, which is in fact rampant, occurs at ports of entry (POEs). This is true, but is reflective of the fact that the POEs where this often occurs are those proximate to areas where fencing already exists so smugglers are squeezed into POEs in order to effect the crossings. When drug smugglers use remote areas of the border that are inadequately fenced and vehicle crossings easily accomplished, as often as not they don't show up in official seizure statistics because they are successful in moving their load into the United States. This is why using POE statistics to assess where drugs enter is inaccurate and misleading.

Furthermore, the more hardened POEs become at the expense of a physical barrier, the more likely it is that the hundreds of miles of unfenced areas of the border will become desirable to smugglers of any commodity, whether humans, drugs, guns, money, or other contraband. Ironically, this will also take place in many of the national parks and monuments that some legislators want to specifically exempt from fencing out of concern for the ecological impact (see, e.g. Section 231 of the H.J. Res. 31 now enacted into law). One can hardly imagine a better recipe for disaster. Do they think that contraband smugglers will avoid them out of respect for the fragile ecology? This is almost certainly one of the reasons why the president issued his statement of understanding.

Second, opponents point to the president's remarks and say that he is discussing crime and drugs, and these are not military matters. I don't think it's that clear cut. Border security and drug interdiction are elements of national security. U.S. military assets, and hundreds of millions of taxpayer dollars, are being used all over the globe to aid foreign governments in interdiction and eradication of cocaine and heroin production, from fields to illicit factories, and in tracking down and capturing transnational gangs involved in these and other offenses. Is it so difficult to believe that the military has the responsibility, capacity, and authority to do this closer to home for the betterment of our communities, and that engaging in such activities doesn't adversely implicate civil law enforcement?

Third, opponents often point to overall apprehension statistics in recent years, and compare them to some past years to say that, on balance, they aren't nearly as overwhelming as they have been. That, too, misses the mark on several fronts. It's worth noting that, in previous years, the vast bulk of those apprehensions were adult Mexican males who were quickly and efficiently repatriated. That is no longer the case. Other-than-Mexicans have seen the vulnerability of our border and the weaknesses of our legal processes to stress and are overwhelming the immigration control regimen of the United States. Immigration courts have a backlog of over a million cases; another million consist of aliens who have been through proceedings and ordered deported, but are now roaming the streets under un-executed final orders of removal because they fled the system.

And most concerning of all is that hundreds of thousands of today's border-crossers are not adult males at all: They are vulnerable women and children drawn by the siren song of the north. Many don't make it; many others are victimized in so many ways, including physical or sexual assault, or through being forced to act as drug mules, or through extortion of waiting relatives, in order to extract even higher smuggling fees.

We as a people are complicit in this international trade in women and children as long as we tolerate their movement across our borders. Robust physical barriers will do a great deal to shut down this immoral situation. It is up to Congress to do the rest — to live up to its responsibility to amend the laws and close the loopholes that are feeding this monster.