President Donald Trump plans to deliver a primetime address to the nation on Tuesday night. “I am pleased to inform you that I will Address the Nation on the Humanitarian and National Security crisis on our Southern Border,” he tweeted.
Hopefully, President Trump will announce his decision to declare a national emergency under his existing statutory authority. Declaring a national emergency will enable the president to use monies already appropriated for use by the Defense Department to begin construction on one or more steel barriers on the southern border with Mexico.
The president has gotten nowhere with the obstructionist Democrats who have blocked his relatively modest budget appropriations request. Last week, Speaker Nancy Pelosi sarcastically offered one dollar for wall funding. A partial government shutdown is in its third week as attempts failed over the weekend to reach a compromise between Democrat leaders in Congress and the Trump administration.
Neither the construction of effective physical border barriers nor the full reopening of the federal government should wait any longer. The president’s use of his existing statutory authority to declare a national emergency is the only way out of the current stalemate. It would give him the political space to sign the remaining appropriations bills while showing his determination to fight to the end to keep his core campaign promise.
Lawsuits are certain to immediately follow the president’s declaration of a national emergency. Democrats have already suggested that they will take the president to court if he takes this extraordinary step. Howls demanding the president’s impeachment will get louder. President Trump’s usual adversaries will no doubt try to use the liberal Ninth Circuit, as they have in the past, to block the president’s implementation of his declaration of a national emergency.
This time, however, the Trump administration should take the offensive. Simultaneously with the president’s invocation of his statutory national emergency powers, the Trump administration should bring an action in one of the friendlier federal district courts in Texas to seek what is known as a declaratory judgment.
The idea is to get ahead of the president’s likely opponents by proactively choosing the venue in which to litigate his authority to invoke national emergency powers. The president will have a much better chance of success in a court that will actually interpret the law rather than legislate its policy preferences from the bench.
There is unquestionably a strong factual basis supporting the declaration of a national emergency at the U.S. border with Mexico. Drug smuggling, human trafficking, the illegal entry of violent criminals, and vulnerability to the entry of suspected terrorists constitute a national security and humanitarian crisis.
According to statistics compiled by the Department of Homeland Security (DHS) presented to Congress, there were dramatic increases between FY (Fiscal Year)17 and FY18 in deadly illegal drugs at the southern border. In FY18 the U.S. Customs and Border Protection (CBP) seized or helped seize 282,000 lbs of cocaine, 248,000 lbs of methamphetamine, 6,500 lbs of heroin and 2,400 lbs of fentanyl. CBP and border agents seized 17,000 adults at the southern border with existing criminal records during FY18. During FY17, DHS prevented 3,755 known or suspected terrorists from traveling to or entering the U.S., although it is unclear how many were apprehended trying to cross the southern border. Of course, even one terrorist sneaking into this country from Mexico is one too many.
There are inadequate detention facilities to hold the illegal immigrants and would-be asylum seekers apprehended in this country. Loopholes in the existing immigration laws often result in the release of would-be asylum-seekers into U.S. communities until their cases can be heard. The current immigration system is failing and, as a result, the security of Americans is imperiled by undeterred illegal migration.
Contrary to Democrats’ talking points, the use of well-constructed physical barriers is the morally right thing to do as part of a multi-pronged approach to stem the tide of illegal immigration. Some Democrats, such as Senate Minority Leader Chuck Schumer, supported the authorization of barrier fences in the past when they voted for the Secure Fence Act of 2006. They are only opposing them now for crass political reasons. Morality has nothing to do with their hypocritical obstructionism. By building and publicizing visible physical deterrents to those considering illegal crossings, the barriers reduce the likelihood of deaths or serious illnesses from dangerous treks and potentially lethal confrontations. Moreover, physical barriers work if properly constructed. Israel’s large sensor-rigged, razor wire-lined border fence with Egypt has cut the number of illegal immigrants entering Israel by 99 percent.
President Trump has the statutory authority to declare a national emergency under the National Emergencies Act. Section 201(a) states: “With respect to Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such national emergency.”
Funds and other resources being used for Department of Defense civil projects for non-essential projects may be repurposed by the Secretary of Defense, in the event of a presidential declaration of a national emergency that may require the use of the Armed Forces, to “the construction, operation, maintenance, or repair” of “authorized civil works, military construction, and civil defense projects that are essential to the national defense.”
President Trump, who has already dispatched military forces to the border to provide lawful assistance to besieged border agents, should be able to use this emergency authority. He can direct the acting Secretary of Defense to divert a portion of the multi-billion-dollar military budget for civil projects to constructing the steel border barriers.
Congress has evidenced its sense of urgency regarding the border barrier issue by passing the REAL ID Act in 2005. It was passed as part of the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief Act. This statute authorized the Secretary of the Department of Homeland Security to waive all legal requirements that the Secretary deems necessary, in his or her “sole discretion,” to ensure “expeditious construction” of border barriers.
Some legal scholars have described this waiver authority, involving directives from a single executive agency under the authority of the president to build border barriers, as perhaps “the biggest Congress has yet passed.” The underlying purpose is to clear away legal obstacles to the DHS Secretary’s authority to deter illegal crossings in areas of high illegal entry into the United States through “expeditious construction of barriers and roads.”
The REAL ID Act limits the jurisdiction of the federal district courts to hear only constitutional challenges and allows appellate review of the district court’s decision only by the Supreme Court – eliminating the involvement by any circuit courts of appeals. The Secretary of the Department of Homeland Security has already used this waiver authority during the Trump administration and has been upheld in court.
A California federal district court judge determined that the Secretary had the statutory and constitutional authority to waive all legal requirements to ensure "expeditious construction" as the Secretary deems necessary. The Supreme Court declined to review this decision. The president's authority to declare a national emergency under the National Emergencies Act in order to redirect defense funds already appropriated should logically extend to the very same purpose of the broad waiver provisions of the REAL ID Act. That would be the expeditious construction of border barriers to deter illegal crossings in areas of high illegal entry into the United States, which the president determines as commander in chief to be necessary to protect national security.
Congress reserves the power to terminate the president’s declaration of a national emergency by concurrent resolution of both houses. Thus, Congress possesses the means to curb the president’s exercise of national emergency powers and stop the president in his tracks from proceeding with barrier construction in the absence of legislative appropriation authority.
This may be difficult, considering Republican control of the Senate. Senate Mitch McConnell can presumably invoke the filibuster to require 60 votes to advance the resolution for a vote in case a few wavering Republicans consider joining the Democrats’ ranks in favor of the resolution. In the end, however, there are checks and balances as the outcome of President Trump’s declaration of a national emergency would be in Congress’s hands.
If Congress fails to pass the concurrent resolution, it can be presumed that Congress has tacitly accepted the president’s national emergency declaration at least for the time being. Only if Congress passes a concurrent resolution to end the president's declaration of a national emergency and the president ignores Congress’s action would he be legitimately subject to a charge of abuse of power.
President Trump can use his declaration of a national emergency and simultaneous declaratory judgment action in a Texas federal district court as a bargaining chip with the Democrats. He can demand the $5.6 billion or so that he is looking for in exchange for terminating his national emergency declaration himself and signing the remaining appropriation bills to reopen the government.
If that does not work, then the president should proceed with as much steel barrier construction as he can under his national emergency declaration. If the courts stop him, he will have a potent issue to run on in 2020 – against activist judges and obstructionist Democrats.