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32 by 45: The Trump administration defines a national emergency


The US-Mexico border. Picture by rey perezoso on Flickr (CC BY-SA 2.0).

The United States is experiencing thirty-one active national emergencies. Last month, the 45th US administration under Mr Trump categorised unauthorised migration across the US-Mexico border as the thirty-second. To understand the significance of bureaucratic protocol is somewhat pedantic, but this particular measure signals a new normal for US citizens and non-citizens alike.


Mr Trump granted the Departments of Defense, Interior, and Homeland Security authority to seize borderlands while ‘assisting Department of Homeland Security (DHS) activities in the southern border region’. Most likely, the open-ended authorisation refers to a border wall. The declaration invokes 10 U.S. Code § 2808, the Secretary of Defense’s power to undertake military construction projects during a declaration of war or a national emergency. An unknown amount of funding may translate into more than 2,000 miles of 40-foot thick solid concrete wall, vertical steel slat partitions installed in vacant border land, and/or a round-the-clock battalion deployed in the Sonoran desert to patrol for Central American families. If this declaration continues beyond this administration, US presidents will be able to unilaterally enact any border security measures without congressional approval or oversight. Unauthorised migration from any country into the United States could be a perpetual emergency.


Authors of the declaration point to ill-equipped security personnel, a lack of detention facilities, and an increased presence of Central American ‘family units’ when justifying the declaration’s existence. Unaccompanied minors and families, authors contend, are at a greater risk to flout US immigration laws and reside in the country without proper documentation. Border crossing data from 2009 to 2017 verifies an uptick in Central Americans crossing the US-Mexico border. Yet, Dr Donald Kerwin’s preeminent Center for Migration Studies (CMS) research shows unauthorised US-Mexico border crossings plummeted over the last decade. Another CMS working paper found that a supermajority of unauthorised residency comes from overstaying on an expired visa. These findings illustrate that a national emergency declaration can sometimes present flawed reasoning.


An emergency is a sudden, dangerous situation which requires an immediate solution. Mass shootings, natural disasters, and terrorist attacks paint vivid pictures of emergencies for the international community. Increased security and tightening emergency preparedness among local law enforcement bodies have cultivated an almost universal understanding of an emergency. Since Cold-War-era nuclear fallout drills, constant emergency-preparedness has blurred distinctions between possible threat and real danger. Responses to emergencies, too, have transformed. ‘Thoughts and prayers’, once a heartfelt sentiment, has developed a perfunctory, insincere tone. National emergencies may legitimately represent danger, but presidents have no legal guidance to decipher when declaring a national emergency is appropriate. A US president who declares a national emergency is exercising their own judgment about potentially dangerous situations.


Legally speaking, only the President can declare, and thus define, a national emergency. President Woodrow Wilson issued the first national emergency declaration to address insufficient maritime transportation for US exports, but Congress didn’t codify these declarations until 1976. The National Emergencies Act formally recognized the presidential authority to declare a national emergency, but the Act still did not define an emergency nor when a president must declare one. The powers endowed to a sitting US president during a national emergency are also vague and unclear. The Act allows presidents to redirect funds, personnel, and other government resources toward solving a major problem. Since Congress is constitutionally accountable for these governance tasks, a national emergency declaration initiates an odd arrangement. The President appropriates temporary unilateral authority and then relinquishes congressional powers after the federal government solves a clearly defined problem. Presidents often follow this formula when declaring a national emergency. Former President George W. Bush declared a national emergency after the September 11 terrorist attacks. Former President Barack Obama did the same during an epidemic of swine flu in 2009. Legislators, in turn, continually rely on presidential interpretations to explain these vague statutes.


The thirty-second active national emergency has effectively placed Central American migrants in the same category as the worst terrorist attack in US history and a deadly influenza virus strain. Mr Trump himself has often claimed sealing the US-Mexico border is a national security priority, one that will inhibit criminal activity and drug trafficking. He also said that he didn’t have to declare a national emergency at a post-declaration press junket, casting serious doubt on the use of presidential interpretation for detecting an emergency. California’s Attorney General Xavier Becerra led sixteen states in a lawsuit against the administration within hours of the declaration’s release. Mr Trump’s impromptu admission in the Rose Garden will more than likely appear in the case against this 32nd national emergency declaration.


Political adversaries have three ways to strike down a national emergency declaration. The House of Representatives staged a successful vote to block the declaration. The Senate recently voted to block the declaration, too. The President, however, will probably issue a veto to keep the declaration intact. A new administration can allow a national emergency declaration to expire. The scenario which will most likely play out in the coming weeks and months is a drawn-out legal battle. A veritable California et al. v. United States will most likely answer two questions: 1) what is a national emergency? and 2) does unauthorised migration across the US-Mexico qualify as a national emergency under that definition? Prof Michael McConnell of Stanford Law School speculates that the Supreme Court will rule on the border wall as a military construction. The 32nd national emergency authorises military jurisdiction in borderlands, but the federal government prohibits the military from serving as law enforcement officials since 1878. To paraphrase Prof McConnell, the wall is not being built to fend off the Mexican army; therefore, the military cannot assist its construction. If the Supreme Court rules in favor of the administration, the wall, and its supporting national emergency declaration, US Armed Forces would become a law enforcement agency.


National emergency declarations represent a president’s assessment of a contentious issue. Mr Trump’s judgement? A national emergency declaration is the solution to the “problems” of immigration and immigrants. The hasty declaration, the Rose Garden admission, and inconclusive data all signal that presidential interpretation is not a sufficient standard for declaring an emergency.


So, where does the true emergency lie? It lies in mass graves along Mexican migrant routes, in an unstable Central America, and in a federal government actively seeking to enforce domestic law with militarised occupation.

Vicente Lovelace.jpeg
Vicente Lozano Lovelace

Vicente Lozano Lovelace is an award-winning, published, and Spanish-speaking Oxford alum. He's spent several years in nonprofits and direct public service organizations dedicated to progressive public policy. Vicente hopes to graduate law school and become an attorney at the forefront of the sanctuary city debate and other mobility-related policy issues.

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