WashU Expert: This national emergency is ‘fictitious’

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President Donald Trump on Feb. 15 declared a state of emergency where there is none, said an immigration law expert at Washington University in St. Louis.

“This much is crystal clear: There is no national security emergency at the southern border,” said Stephen H. Legomsky, the John S. Lehmann University Professor Emeritus at the School of Law and former chief counsel for U.S. Citizenship and Immigration Services in the Obama administration. “Illegal entries today are a small fraction of what they were 20 years ago, and the total size of the resulting undocumented population has stayed flat for at least the past 10 years.”

Legomsky said Trump’s immigration policies have caused what he terms a “humanitarian crisis.”

Legomsky

“In contrast, there is indeed a humanitarian crisis, but it’s the one that the Trump administration has unilaterally created through its systematic assault on the right to apply for asylum,” he said.

Trump’s declaration of emergency, which the president announced as part of a move to gain wall funding from sources other than Congress, will face a legal battle — but one too close to predict at this point.

“Whether the courts will invalidate the declaration of national emergency is a close question” Legomsky said. “On the one hand, the Supreme Court in Trump v. Hawaii refused to review a presidential claim of a national security threat justifying the Muslim ban. On the other hand, the courts might well fear the implications of a precedent of unquestioning deference to ’emergency’ declarations.”

He echoed sentiments voiced by politicians, analysts and pundits on Feb. 14, when the administration announced their intentions: That such a declaration of national emergency could set the stage for future presidents to make similar pronouncements for reasons more policy-based and political than the usual natural disasters or imminently life-threatening events such as epidemics.

“Unlike the fictitious border emergency claimed by President Trump, a future progressive president could make a serious case for a green emergency, a democracy emergency, a gun safety emergency, or a civil rights emergency,” Legomsky said.

To Legomsky, Trump is showing why such powers were introduced historically.

“The purpose of the National Emergency Act was not to authorize presidential declarations of emergency; it was to limit them,” he said. “The statute, passed in 1976, was specifically designed to curb what Congress saw as excessive and unjustifiable presidential usurpations of congressional powers. The very first sentence begins: ‘An Act to terminate certain authorities with respect to national emergencies still in effect…’ ”

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