President Trump seems to have relied on the White House counsel’s office for advice on declaring a national emergency—but then disregarded the office’s repeatedly expressed doubts about the legal basis for the declaration.
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From a detached legal perspective, Trump’s actions are not terribly controversial or worrisome. In context, they are.
When litigation comes, the resolution of the president's invocation of a national emergency and of 10 USC § 2808 will turn to no small extent on the concept of judicial deference.
When the president issues an executive order or a proclamation, federal regulations require the attorney general to review the resulting document, and the attorney general has delegated this authority to the Justice Department’s Office of Legal Counsel.
Inquiring minds want to know.
As part of its effort to construct a border wall, the Trump administration has invoked a statutory delegation of authority signed into law by President Obama after the 2016 election.
The president signed spending legislation appropriating over a billion dollars for constructing a wall, along with a declaration of emergency to authorize an additional $6.5 billion.
The Trump administration signals compliance with non-refoulement by instituting a process that imposes an unprecedentedly high burden of proof for those who fear persecution in Mexico.
For President Trump to declare a state of emergency in order to construct a southern border wall would be stupid and wasteful. But it would not be, in itself, a step toward authoritarianism.
The program represents a shift toward moment-by-moment monitoring of immigrant activities during the lifecycle of their interactions with the United States.