A national emergency: Trump trumps Trump

I’ve set the stage for doing what I’m going to do,” President Donald TrumpDonald John TrumpJustice Department preparing for Mueller report as soon as next week: reports Smollett lawyers declare 'Empire' star innocent Pelosi asks members to support resolution against emergency declaration MORE announced recently.  His comment may foreshadow a declaration of a national emergency to address the “humanitarian and security crisis” on the southern border between the United States and Mexico by securing the resources to build a wall.

It is not at all clear, of course, that a crisis exists. Or that building a wall will address the most pressing security problems. Here are the facts (as reported by agencies in the Trump administration):

1) Arrests of migrants crossing the border illegally have declined precipitously over the last two decades, from a high of 1.6 million in 2000 to 396,000 in fiscal 2018.

2) The largest number of “illegals” are individuals who remain in the United States after their visas expire, with Canadians at the top of this list of miscreants.

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3) According to U.S. Customs and Border Protection, 17,000 “criminal aliens” crossed the border in 2018.  The vast majority were convicted only of non-violent crimes, including driving while intoxicated and, not surprisingly, entering the United States illegally.  Press Secretary Sarah Sanders to the contrary notwithstanding, only six people on terror watch lists were detained at the border in 2018.  Nor has anyone who crossed the border ever been found to be responsible for a terrorist act. Legal and illegal immigrants commit violent crimes at lower rates than native-born Americans.

4) The number of asylum seekers jumped from 55,584 in 2017 to 92,959 in 2018.  The vast majority of them are families or children traveling alone from Central America, who present themselves to authorities at the border, as American law entitles them to do. A wall is not relevant to their situation.

5) As the recent seizure of 254 pounds of fentanyl reminds us, most drugs enter the United States through cars and trucks passing through ports of entry, or are smuggled in at sea.

Given the absence of any criteria defining a national emergency in the National Emergencies Act of 1976, and a majority of justices on the Supreme Court who are receptive to an expansive view of presidential power, however, a declaration of a national emergency and the deployment of funds (appropriated for other purposes) to pay for a wall may pass judicial muster.

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That said, Americans — including judges — should consider alternative facts presented by the president that trump Trump’s categorical claims that he must declare a national emergency so that he can resolve the crisis by building a border wall:

1) “I’m very proud to say that we’re way down in the people coming across the border,” Trump announced a year ago. “We have fewer people coming across the border because they know it’s not going to happen.”

2) After praising the “FANTASTIC job” done by ICE, Border Patrol, and the Military, the president boasted on December 11, 2018, “Our Southern Border is now secure and will remain that way.”

3) On January 2, 2019, Trump maintained that “much of the wall has already been fully renovated or built” [Fact check:  about 34 miles of walls and fences have been upgraded since he took office].  Without a wall, he later indicated, “drug infestation and crime” would be “worse than at any time in our history,” only to add (in a non-sequitur) “And our crime numbers are very good.”

4) In a series of tweets on January 31, 2019, Trump declared he was sending more troops to the border: Although securing the border “would be soooo much easier and less expensive” with a wall, “we have stopped the previous caravans, and we will stop these also.”  “I’ve got you covered,” he assured his Twitter followers.  “Wall is already being built.”

5) “The chant should now be ‘finish the wall’ instead of ‘build the wall’ because we’re building a lot of wall,” Trump said on February 1.

Is a wall, beautiful or ugly, made of concrete or steel, solid or see-through, spanning 2,000 miles from sea to shining sea, and paid for by Americans (and not Mexicans), worth a shutdown?  

Is it worth a declaration of a national emergency that subverts our system of checks and balances?

Your answer (and, perhaps, the response of the courts) depends on which Trump you decide is telling it like it really is. Or whether you conclude that both of them are making stuff up.

Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University, and the co-author (with Stuart Blumin) of Rude Republic: Americans and Their Politics in the Nineteenth Century.