Sunday, February 17, 2019

For the Record: The Rhetoric of Emergency

Screenshot by BBC, May 2018.



I really hope, though it hardly seems likely, that the courts are able to grapple with this issue as they're working their way through the thing. The statute that gives the president his emergency powers doesn't seem to give him any definition of what constitutes an emergency, suggesting that anything is an emergency if he says it is in the correct style, but is that true? The first use of the current act was to allow the US to impound Iranian funds during the hostage crisis in 1979 (the same funds that played a central role in the Iran nuclear deal); if Trump wanted to seize Mexican money until they agreed to write him a check for $25 billion in wall expenses, would it be in principle legal to claim he was forced to do this by an emergency?

Because the explanation of the ongoing emergency in the declaration text isn't especially impressive:
The southern border is a major entry point for criminals, gang members, and illicit narcotics. The problem of large-scale unlawful migration through the southern border is long-standing, and despite the executive branch's exercise of existing statutory authorities, the situation has worsened in certain respects in recent years. In particular, recent years have seen sharp increases in the number of family units entering and seeking entry to the United States and an inability to provide detention space for many of these aliens while their removal proceedings are pending. If not detained, such aliens are often released into the country and are often difficult to remove from the United States because they fail to appear for hearings, do not comply with orders of removal, or are otherwise difficult to locate. In response to the directive in my April 4, 2018, memorandum and subsequent requests for support by the Secretary of Homeland Security, the Department of Defense has provided support and resources to the Department of Homeland Security at the southern border. Because of the gravity of the current emergency situation, it is necessary for the Armed Forces to provide additional support to address the crisis.
What gravity? If it's Central American asylum applicants, and those are the only "family units" whose nunbers have "sharply increased", it's certainly a serious logistics problem, but one that was clearly under control by the fall of 2014, under the characteristic Obama-era "catch and release" program in which applicants were released to sponsors, usually family members legally residing in the US. "Often" is a term of art there; 95% of them did show up for hearings (you could get that rate higher with the use of ankle bracelets, though I wouldn't be crazy about it), and the only thing that made it a crisis in 2017 was the decision on the part of the Sessions DOJ to stop that approach without any legal alternative (prosecuting them without hearing their asylum applications first and interning their kids for indefinite periods turned out to be illegal, as some of us could have told them if they wanted to know), and they're a drop in the bucket of the 11-plus million undocumented spread across the country in any case.

And why are the US Armed Forces "necessary" to address it? Given that by the Posse Comitatus Act of 1878 they will
not be allowed to detain immigrants, seize drugs from smugglers or have any direct involvement in stopping a migrant caravan...
The declaration says that the USAF is indispensable for fence-building:
this emergency requires use of the Armed Forces and, in accordance with section 301 of the National Emergencies Act (50 U.S.C. 1631), that the construction authority provided in section 2808 of title 10, United States Code, is invoked and made available, according to its terms, to the Secretary of Defense and, at the discretion of the Secretary of Defense, to the Secretaries of the military departments.
But—beyond the important point that barrier-building activity will do nothing whatever to stop these problems, let alone the drug transit or human trafficking, which overwhelmingly happen under the Border Patrol's noses at legal crossings, that's not what the USAF are trained to do at all, the statute quoted says the authority is for military construction—there are lots of people in the United States who can build fences and aren't in uniform. They just can't do it because Congress won't allow it. Trumpy wants the military because he thinks Congress can't stop him from doing it. That's the emergency.

That and Trumpy's desire to seize land from the ranchers on the borders:
The Secretary of Defense, the Secretary of the Interior, the Secretary of Homeland Security, and, subject to the discretion of the Secretary of Defense, the Secretaries of the military departments, shall take all appropriate actions, consistent with applicable law, to use or support the use of the authorities herein invoked, including, if necessary, the transfer and acceptance of jurisdiction over border lands. 
Here we have a Republican administration claiming that the "emergency" entitles them to expropriate ranchers at will. We're a long way from Ruby Ridge, people.

Also in the rhetoric news is Trump's claim that Rod Rosenstein may have been plotting a coup against him in the spring of 2017. It all comes together:








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