Opinion | White House

National emergency declaration — a legal fight Trump is likely to win

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House Speaker Nancy Pelosi (D-Calif.) and Senate Democratic Leader Chuck Schumer claim that President Donald Trump's Southern Border National Emergency Proclamation is an unlawful declaration over a crisis that does not exist, and that it steals from urgently needed defense funds - 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.

In fact, this isn't about the Constitution or the bounds of the law, and - in fact - 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 "national emergencies."

As of 1973, congress had passed more than 470 statutes granting national emergency powers to the president. National emergency declarations under those statutes were rarely challenged in court.

In Youngstown Sheet & Tube Co. v. Sawyer, which was decided in 1952, the Supreme Court overturned President Harry S. Truman's proclamation seizing privately owned steel mills to preempt a national steelworker strike during the Korean War. But Truman didn't have congressional authority to declare a national emergency. He relied on inherent powers which were not spelled out in the Constitution.

Trump, however, is using specific statutory authority that congress created for the president.

In 1976, Congress passed the National Emergencies Act (NEA), which 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.

The president must:

Specify the provisions of law under which he intends to act;

Transmit the declaration to congress immediately and publish it in the Federal Register;

Maintain a file and index of orders, rules, and regulations issued pursuant to the declaration; and

Provide reports to congress on expenditures directly attributable to the declaration.

Previous presidents declared 27 national emergencies that were still in effect as of February 1, 2019. Trump declared three national emergencies, which brought that total up to 30. An additional 21 national emergency declarations are no longer in effect.

Trump's proclamation declares that it is necessary to increase the use of military forces at the border and to invoke the emergency military construction authority in 10 U.S.C. § 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.

Crisis at the border

Trump states in the proclamation that "the southern border is a major entry point for criminals, gang members, and illicit narcotics." He states further that large-scale unlawful migration through the southern border is long-standing problem that has gotten worse in recent years.

I expect Pelosi and Schumer to gain traction disputing Trump's 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.

Apprehensions of illegal crossers dropped to 303,916 in fiscal 2017, but they are rising again.

There were 50,998 apprehensions in 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.

The immigration courts are overwhelmed by their caseload already. As of Nov. 30, 2018, the courts had a backlog of 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.

The average wait for a hearing is 1,018 days - more than two and a half years.

That's bad, but more worrying is the fact that Director of National Intelligence (DNI), Daniel R. Coats, identified an increase in migration from Central America as a national security threat in the Worldwide Threat Assessment of the U.S. Intelligence Community that he presented to the Senate Select Committee on Intelligence on Jan. 29, 2019.

The same finding was included in the Worldwide Threat Assessment that former DNI James R. Clapper presented to Congress in 2016, during the Obama administration.

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 hearing into two segments, an open hearing for the public, and then a closed hearing at which classified information was presented. Presumably, the explanation was given in the closed hearing.

Legal challenge looms

Trump just signed the proclamation, and opposition is forming already.

House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) is calling for a hearing in the coming days on Trump's proclamation.

And the American Civil Liberties Union is asking for donations to defray the cost of challenging the proclamation in court.

The challenges will be taken to courts that have shown hostility towards Trump in the past, such as the federal district court in Hawaii that flouted precedent to block the implementation of his travel ban. It is a virtual certainty that those courts will stop implementation of his national emergency proclamation too.

But in view of the deference that has been shown to previous national emergency proclamations, I expect Trump to prevail in the Supreme Court, as he did in the travel ban case.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.

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