What does it mean when 12 Republican senators, and a majority of their Senate colleagues, and a majority of the Democratically-controlled U.S. House of Representatives vote to nullify President Trump’s declaration of an emergency along our southern border?
The emergency declaration, pursuant to a federal statute adopted by bipartisan majorities in both Houses, allows the president to repurpose already-appropriated funds to build a barrier on our porous southern boundary.
The president has now vetoed Congress’s attempted nullification of his declaration of emergency, and Congress does not have the two-thirds vote required in both Houses to override his veto.
Still, it is likely that the president’s seeking to build his promised wall in this manner will face a court challenge, and since there are enough partisan district court judges to concoct a spurious reason to frustrate this executive’s actions, the matter will likely end up resolved by a higher court, possibly the Supreme Court itself.
The president’s declaration of emergency and concomitant use of funds will eventually be upheld (as several of his other temporarily stymied measures have been). It is surely of some significance in evaluating the appropriateness of what President Trump has done that his newly-appointed attorney general, the highly-respected William Barr, has enthusiastically supported the president’s declaration of emergency.
Barr has declared that Mr. Trump’s action "was clearly authorized under the law and consistent with past precedent . . . The humanitarian and security crisis that we currently have right now on the border is exactly the type of emergency that presidents are permitted to address."
It has not been widely reported, but the president’s statement ("Veto Message to the House of Representatives for H.J. Res. 46") accompanying his veto laid out data confirming that U.S. Attorney General Barr is correct:
"Last month alone [border enforcement officials] apprehended more than 76,000 aliens improperly attempting to enter the United States along the southern border — the largest monthly total in the last 5 years. In fiscal year 2018, [enforcement officials] seized more than 820,000 pounds of drugs at our southern border, including 24,000 pounds of cocaine, 64,000 pounds of methamphetamine, 5,000 pounds of heroin, and 1,800 pounds of fentanyl.
"In fiscal years 2017 and 2018, immigration officers nationwide made 266,000 arrests of aliens previously charged with or convicted of crimes. These crimes included approximately 100,000 assaults, 30,000 sex crimes, and 4,000 killings."
Prominent Democrats Like U.S. House Speaker Nancy Pelosi and Sen. Chuck Schumer, D-N.Y., have clung to their belief that this is a "manufactured crisis."
But this is not the view of those charged with enforcing our immigration law, nor is it what the president’s statistics indicate.
The 12 Republican senators, oddly seeking to frustrate the will of a Republican president, claim they took the action they did because they fear a future president might abuse the power to declare emergencies, and, as Mr. Trump did, carry out his or her wishes, even after Congress had specifically failed to allocate funds for the desired action.
These senators and countless Democrats piously claim that President Trump’s actions, and those of a future president following his example, would represent a threat to the Constitution’s scheme of separation of powers, since only the Congress, and not the president, is given the power of the purse.
This is nonsense, however, since the funds the president proposes to use have themselves already been appropriated, and since the statute authorizing a president to do what President Trump plans was, of course, authorized by Congress itself. Congress can always pass legislation withdrawing emergency powers from the president, temporarily or permanently.
President Trump is not threatening separation of powers, but insofar as the president seeks to fulfill his oath and his constitutional duty to take care that our laws on immigration are carried out, it is Congress and any court that nullifies the president’s action who are undermining the Constitution.
There is a threat to separation of powers here, and it comes from the perplexing attitude of Democrats, some Republicans, and almost all of the media, that somehow this duly-elected president must be prevented from carrying out the policies he was elected to implement.
The president’s veto message noted that human floods of caravans from the south seeking to cross illegally into our territory are at record levels, and that, "Criminal organizations are taking advantage of these large flows of families and unaccompanied minors to conduct dangerous illegal activity, including human trafficking, drug smuggling, and brutal killings."
There is real danger here, and it is to prevent that danger that we have immigration laws and officials to carry them out.
The inexplicable or misbegotten opposition to this president, an opposition that spawned what we will soon understand is the canard of Russian collusion designed to weaken and ultimately to remove him, must not be permitted grievously to undermine our laws and Constitution.
Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). Presser was recently appointed as a Visiting Scholar in Conservative Thought and Policy at the University of Colorado's Boulder Campus for 2018-2019. To read more of his reports — Click Here Now.