I’ve already opined that (a) a president should not have the power to declare a state of emergency except in dire circumstances (such as an attack or a natural catastrophe) that are not currently at hand; and (b) the courts will find that President Trump’s declaration of an emergency is reviewable because Congress intended for there to be a check on this power (the originally intended check, the legislative veto, was struck down by the Supreme Court) — and then the courts will invalidate the declaration.


My current point is more about logic than law. I don’t understand — other than for cynical political considerations — how the president can both sign the spending bill and declare a national emergency over border security.

As Politico reports, the president is signing a bill that provides only $1.4 million for border barriers (less than a third of what he sought). Ludicrously, it prohibits the Department of Homeland Security from detaining or deporting an illegal alien if he or she is a potential sponsor for an unaccompanied minor alien. Even though the bill exempts illegal aliens who have been charged with felonies, this provision immunizes people illegally in the country while encouraging more illegal immigration, including the ongoing challenge of attempted entry by families with minors. The bill also increases funding for “alternatives to detention” so that more illegal aliens who should be detained and deported may be released in the country.

The pressure in the bill the that president is signing is not to reduce illegal immigration. It is to reduce the capacity of the authorities to detail illegal aliens by reducing the detention/bed space available.


I think these are bad policies, but that is beside the point. The president is signing them into law. Trump apologists will say that he has no alternative because otherwise the government will shut down. But that is just a way of spinning the unexceptional fact that Congress will not give him what he wants, and he believes signing a bad bill is better than being blamed for a shut down. That is a reasonable political calculation. But when there is an actual emergency, such political calculations are not in play.

I don’t see how you can simultaneously endorse the enactment into law of bad enforcement policies that encourage more illegal immigration and declare a national emergency on the rationale that we have a security crisis.