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<\/div>\n\u00a9 Getty Images<\/h5>\n<\/div>\n\n\n\n\n\nHouse Speaker\u00a0Nancy Pelosi<\/a><\/span>\u00a0(D-Calif.) and Senate Democratic Leader\u00a0Chuck Schumer<\/a><\/span>\u00a0claim<\/a>\u00a0that President\u00a0Donald Trump<\/a><\/span>\u2019s\u00a0Southern Border National Emergency Proclamation\u00a0<\/a>is an unlawful declaration over a crisis that does not exist, and that it steals from urgently needed defense funds \u2014 that it is a power grab by a disappointed president who has gone outside the bounds of the law to try to get what he failed to achieve through the constitutional legislative process.<\/p>\nIn fact, this isn\u2019t about the Constitution or the bounds of the law, and \u2014 in fact \u2014 there is a very real crisis at the border, though not necessarily what Trump often describes. It helps to understand a bit of the history of \u201cnational emergencies.\u201d<\/p>\n
As of 1973, congress had passed\u00a0more than 470 statutes<\/a>\u00a0granting national emergency powers to the president. National emergency declarations under those statutes were\u00a0rarely challenged<\/a>\u00a0in court.<\/p>\nIn\u00a0Youngstown Sheet & Tube Co. v. Sawyer<\/a><\/em>, which was decided in 1952, the Supreme Court overturned President\u00a0Harry S. Truman<\/a>\u2019s proclamation seizing privately owned steel mills to preempt a national steelworker strike during the Korean War.\u00a0But Truman didn\u2019t have congressional authority to declare a national emergency. He relied on\u00a0inherent powers<\/a>\u00a0which were not spelled out in the Constitution.<\/p>\nTrump, however, is using specific statutory authority that congress created for the president.<\/p>\n
In 1976, Congress passed the\u00a0National Emergencies Act<\/a>\u00a0(NEA),\u00a0which<\/a>permits the president to declare a national emergency when he considers it appropriate to do so. The NEA does not provide any specific emergency authorities. It relies on emergency authorities provided in other statutes. The declaration must specifically identify the authorities that it is activating.<\/p>\nThe president must:<\/p>\n
Specif<\/a>y the provisions of law under which he intends to act;<\/p>\nTransmit<\/a>\u00a0the declaration to congress immediately and publish it in the Federal Register;<\/p>\nMaintain<\/a>\u00a0a file and index of orders, rules, and regulations issued pursuant to the declaration; and<\/p>\nProvide reports<\/a>\u00a0to congress on expenditures directly attributable to the declaration.<\/p>\nPrevious presidents declared\u00a027 national emergencies<\/a>\u00a0that were still in effect as of February 1, 2019. Trump declared three national emergencies, which brought that total up to 30. An\u00a0additional 21<\/a>\u00a0national emergency declarations are no longer in effect.<\/p>\nTrump\u2019s proclamation declares that it is necessary to increase the use of military forces at the border and to invoke the\u00a0emergency military construction authority<\/a>\u00a0in 10 U.S.C. \u00a7 2808, which will provide funding for the construction of border walls. The Secretary of Defense will activate members of the Ready Reserve to assist and support the activities of the Secretary of Homeland Security at the southern border.<\/p>\nCrisis at the border<\/strong><\/p>\nTrump states in the proclamation that \u201cthe southern border is a major entry point for criminals, gang members, and illicit narcotics.\u201d He states further that large-scale unlawful migration through the southern border is\u00a0long-standing problem that has gotten worse in recent years.<\/p>\n
I expect Pelosi and Schumer to gain traction disputing Trump\u2019s statement that the southern border is a major entry point for criminals, gang members, and illicit narcotics, but it will be more difficult for them to challenge his concern about large-scale illegal migration.<\/p>\n
Apprehensions of illegal crossers dropped to\u00a0303,916<\/a>\u00a0in fiscal 2017, but they are rising again.<\/p>\nThere were 50,998\u00a0apprehensions<\/a>\u00a0in October 2018; 51,857 in November; 50,749 in December; and 47,893 in January 2019. At this rate, there will be around 806,000 apprehensions in fiscal 2019, which will be two and a half times as many as there were in fiscal 2017.<\/p>\nThe immigration courts are overwhelmed by their caseload already. As of Nov. 30, 2018, the courts\u00a0had a\u00a0backlog<\/a>\u00a0of 809,041 cases. This did not include an additional 330,211 cases that had not been put on the active docket yet, for a total backlog of 1,139,252 cases. The backlog was only 542,411 cases when Trump took office.<\/p>\nThe average wait for a hearing is\u00a01,018 days<\/a>\u00a0\u2014 more than two and a half years.<\/p>\nThat\u2019s bad, but more worrying is the fact that\u00a0Director of National Intelligence<\/a>\u00a0(DNI),\u00a0Daniel R. Coats<\/a>, identified an increase in migration from Central America as a national security threat in the\u00a0Worldwide Threat Assessment of the U.S. Intelligence Community<\/a>\u00a0that he presented to the\u00a0Senate Select Committee on Intelligence<\/a>\u00a0on Jan. 29, 2019.<\/p>\nThe same finding was included in the\u00a0Worldwide Threat Assessment\u00a0<\/a>that former DNI\u00a0James R. Clapper<\/a>\u00a0presented to Congress in 2016, during the Obama administration.<\/p>\nThe public (redacted) version of either report does not explain why increased migration from Central America is a national security threat. The intelligence committee divided the\u00a0hearing<\/a>\u00a0into two segments, an open hearing for the public, and then a closed hearing at which classified information was presented.\u00a0Presumably, the explanation was given in the closed hearing.<\/p>\nLegal challenge looms<\/strong><\/p>\nTrump just signed the proclamation, and opposition is forming already.<\/p>\n
House Judiciary Committee Chairman\u00a0Jerrold Nadler<\/a>\u00a0(D-N.Y.) is calling for\u00a0a hearing<\/a>\u00a0in the coming days on Trump\u2019s proclamation.<\/p>\nAnd the\u00a0American Civil Liberties Union<\/a>\u00a0is asking for\u00a0donations<\/a>\u00a0to defray the cost of challenging the proclamation in court.<\/p>\nThe challenges will be taken to courts that have shown hostility towards Trump in the past, such as the\u00a0federal district court in Hawaii<\/a>\u00a0that flouted precedent to block the implementation of his travel ban. It is a virtual certainty that those courts will stop implementation of his national\u00a0emergency proclamation too.<\/p>\nBut in view of the\u00a0deference that has been shown to previous national\u00a0emergency proclamations, I expect Trump to prevail in the Supreme Court, as he did\u00a0in the travel ban case<\/a>.<\/p>\n
House Speaker\u00a0Nancy Pelosi<\/a><\/span>\u00a0(D-Calif.) and Senate Democratic Leader\u00a0Chuck Schumer<\/a><\/span>\u00a0claim<\/a>\u00a0that President\u00a0Donald Trump<\/a><\/span>\u2019s\u00a0Southern Border National Emergency Proclamation\u00a0<\/a>is an unlawful declaration over a crisis that does not exist, and that it steals from urgently needed defense funds \u2014 that it is a power grab by a disappointed president who has gone outside the bounds of the law to try to get what he failed to achieve through the constitutional legislative process.<\/p>\n In fact, this isn\u2019t about the Constitution or the bounds of the law, and \u2014 in fact \u2014 there is a very real crisis at the border, though not necessarily what Trump often describes. It helps to understand a bit of the history of \u201cnational emergencies.\u201d<\/p>\n As of 1973, congress had passed\u00a0more than 470 statutes<\/a>\u00a0granting national emergency powers to the president. National emergency declarations under those statutes were\u00a0rarely challenged<\/a>\u00a0in court.<\/p>\n In\u00a0Youngstown Sheet & Tube Co. v. Sawyer<\/a><\/em>, which was decided in 1952, the Supreme Court overturned President\u00a0Harry S. Truman<\/a>\u2019s proclamation seizing privately owned steel mills to preempt a national steelworker strike during the Korean War.\u00a0But Truman didn\u2019t have congressional authority to declare a national emergency. He relied on\u00a0inherent powers<\/a>\u00a0which were not spelled out in the Constitution.<\/p>\n Trump, however, is using specific statutory authority that congress created for the president.<\/p>\n In 1976, Congress passed the\u00a0National Emergencies Act<\/a>\u00a0(NEA),\u00a0which<\/a>permits the president to declare a national emergency when he considers it appropriate to do so. The NEA does not provide any specific emergency authorities. It relies on emergency authorities provided in other statutes. The declaration must specifically identify the authorities that it is activating.<\/p>\n The president must:<\/p>\n Specif<\/a>y the provisions of law under which he intends to act;<\/p>\n Transmit<\/a>\u00a0the declaration to congress immediately and publish it in the Federal Register;<\/p>\n Maintain<\/a>\u00a0a file and index of orders, rules, and regulations issued pursuant to the declaration; and<\/p>\n Provide reports<\/a>\u00a0to congress on expenditures directly attributable to the declaration.<\/p>\n Previous presidents declared\u00a027 national emergencies<\/a>\u00a0that were still in effect as of February 1, 2019. Trump declared three national emergencies, which brought that total up to 30. An\u00a0additional 21<\/a>\u00a0national emergency declarations are no longer in effect.<\/p>\n Trump\u2019s proclamation declares that it is necessary to increase the use of military forces at the border and to invoke the\u00a0emergency military construction authority<\/a>\u00a0in 10 U.S.C. \u00a7 2808, which will provide funding for the construction of border walls. The Secretary of Defense will activate members of the Ready Reserve to assist and support the activities of the Secretary of Homeland Security at the southern border.<\/p>\n Crisis at the border<\/strong><\/p>\n Trump states in the proclamation that \u201cthe southern border is a major entry point for criminals, gang members, and illicit narcotics.\u201d He states further that large-scale unlawful migration through the southern border is\u00a0long-standing problem that has gotten worse in recent years.<\/p>\n I expect Pelosi and Schumer to gain traction disputing Trump\u2019s statement that the southern border is a major entry point for criminals, gang members, and illicit narcotics, but it will be more difficult for them to challenge his concern about large-scale illegal migration.<\/p>\n Apprehensions of illegal crossers dropped to\u00a0303,916<\/a>\u00a0in fiscal 2017, but they are rising again.<\/p>\n There were 50,998\u00a0apprehensions<\/a>\u00a0in October 2018; 51,857 in November; 50,749 in December; and 47,893 in January 2019. At this rate, there will be around 806,000 apprehensions in fiscal 2019, which will be two and a half times as many as there were in fiscal 2017.<\/p>\n The immigration courts are overwhelmed by their caseload already. As of Nov. 30, 2018, the courts\u00a0had a\u00a0backlog<\/a>\u00a0of 809,041 cases. This did not include an additional 330,211 cases that had not been put on the active docket yet, for a total backlog of 1,139,252 cases. The backlog was only 542,411 cases when Trump took office.<\/p>\n The average wait for a hearing is\u00a01,018 days<\/a>\u00a0\u2014 more than two and a half years.<\/p>\n That\u2019s bad, but more worrying is the fact that\u00a0Director of National Intelligence<\/a>\u00a0(DNI),\u00a0Daniel R. Coats<\/a>, identified an increase in migration from Central America as a national security threat in the\u00a0Worldwide Threat Assessment of the U.S. Intelligence Community<\/a>\u00a0that he presented to the\u00a0Senate Select Committee on Intelligence<\/a>\u00a0on Jan. 29, 2019.<\/p>\n The same finding was included in the\u00a0Worldwide Threat Assessment\u00a0<\/a>that former DNI\u00a0James R. Clapper<\/a>\u00a0presented to Congress in 2016, during the Obama administration.<\/p>\n The public (redacted) version of either report does not explain why increased migration from Central America is a national security threat. The intelligence committee divided the\u00a0hearing<\/a>\u00a0into two segments, an open hearing for the public, and then a closed hearing at which classified information was presented.\u00a0Presumably, the explanation was given in the closed hearing.<\/p>\n Legal challenge looms<\/strong><\/p>\n Trump just signed the proclamation, and opposition is forming already.<\/p>\n House Judiciary Committee Chairman\u00a0Jerrold Nadler<\/a>\u00a0(D-N.Y.) is calling for\u00a0a hearing<\/a>\u00a0in the coming days on Trump\u2019s proclamation.<\/p>\n And the\u00a0American Civil Liberties Union<\/a>\u00a0is asking for\u00a0donations<\/a>\u00a0to defray the cost of challenging the proclamation in court.<\/p>\n The challenges will be taken to courts that have shown hostility towards Trump in the past, such as the\u00a0federal district court in Hawaii<\/a>\u00a0that flouted precedent to block the implementation of his travel ban. It is a virtual certainty that those courts will stop implementation of his national\u00a0emergency proclamation too.<\/p>\n But in view of the\u00a0deference that has been shown to previous national\u00a0emergency proclamations, I expect Trump to prevail in the Supreme Court, as he did\u00a0in the travel ban case<\/a>.<\/p>\n