Another Attempt to Usurp the Power of Congress
The Merriam-Webster Dictionary defines an emergency as, “an unforeseen combination of circumstances…that calls for immediate action.” Yes, there are issues at the border that require attention. But they are not new. They are not unforeseen. And they certainly do not require the immediate and extraordinary action — a declaration of national emergency — now threatened by President Trump.
Reality Check: There is No National Emergency
As the New York Times explains, if Trump declares a national emergency:
…he will run up against a reality: that the facts on the ground have not drastically shifted. The number of people crossing the border unlawfully is far down from its peak of nearly two decades ago. The recent caravans from Central America primarily consist of migrants who are not trying to sneak across the border but instead are presenting themselves to border officials and requesting asylum.
And while Mr. Trump and his aides keep claiming that terrorists are sneaking in across the border, including assertions that they are doing so by the thousands, as a matter of empirical reality, there has been no such instance in the modern era.
The myth of terrorists infiltrating the southern border has also been debunked by the former director of the National Counterterrorism Center:
Our federal courthouses and prisons are not filled with terrorists we’ve captured at the border. There is no wave of terrorist operatives waiting to cross overland into the United States. It simply isn’t true. Anyone in authority using this argument to bolster support for building the wall or any other physical barrier along the southern border is most likely guilty of fear mongering and willfully misleading the American people.
If Trump makes good on his threat and declares a national emergency, the President would be usurping the constitutional power of Congress to control the purse by shifting already appropriated money for the military to build an ineffective border wall that Congress has refused to do. As Sam Berger of Center for American Progress, formerly a senior policy adviser at the White House Domestic Policy Council, argues, “This plan is not only outlandish, it’s also illegal.”
Most of the current problems at the border are the creation of the Trump administration itself, as the President and his team seem determined to manufacture a national emergency to justify a usurpation of power from the Congress.
Trump Manufactured Border Issues
Last year, at a moment that called for presidential leadership and serious policymaking, Trump reacted with politically motivated tweets, ugly rhetoric, and outright lies about the thousands of Central Americans heading north in search of security and hope. From a policy perspective, the Trump administration’s approach to date has left few options for seeking asylum besides coming to the U.S.-Mexico border. For example, the Trump administration has ended or reduced each and every component of a workable approach.
- Root Cause Alleviation. With respect to root cause alleviation, the U.S. government has reduced aid to the northern triangle countries of Central America by 40%. As Reuters summarized, “In 2016, the United States provided some $131 million in aid to Guatemala, $98 million to Honduras, and $68 million to El Salvador, according to U.S. data. By next year, those sums were projected to fall to $69 million for Guatemala, $66 million for Honduras and $46 million for El Salvador — a reduction of almost 40 percent for the three nations.” Again at the end of last month, Trump threatened to cut funding for northern triangle countries, exactly what is needed to address the root causes of migration from Central America.
- Regional Refugee Protection and Resettlement. With respect to a regional approach to refugee protection and resettlement, this administration has ended or thwarted processing and resettlement programs from within the region that would obviate the need to travel to the U.S.-Mexico border to seek safety. The administration ended the Central American Minors (CAM) program that enabled young people with strong claims for refugee status to apply in their home countries. And efforts by the Obama administration in 2016 to work with the UNHCR (the UN High Commission for Refugees) to set up refugee reception and processing centers in the region have dried up under Trump, with just 525 refugees resettled in the U.S. from all of Latin America in fiscal year 2018.
- Fair Asylum Process. With respect to a fair asylum process that both protects people in danger and ensures integrity of the system, this administration has sought to enact a strategy that undermines fairness, emphasizes detention, separates families and compromises the independence of immigration judges. Careful research of this approach finds that these policies do not work to deter people from seeking protection at our border.
The Smart, Effective, Cost-Efficient, and Humane Alternative
There is a better way. An intelligent response includes smart and humane measures that will result in a more orderly process:
- A major infusion of resources to swiftly hear and review many more asylum claims at border checkpoints, as opposed to the unprecedented “metering” of asylum applicants that results in no more than 40-100 per day being allowed to request asylum at ports of entry.
- Parole into the U.S. and monitoring with effective alternatives to detention programs for those with credible fears of persecution.
- Increased immigration judges with clearly protected independence from the Attorney General to hear asylum claims within a reasonable period of time and within a fair asylum determination process that protects those needing it while ensuring the integrity of our immigration system.
- The U.S. working together with humanitarian aid organizations to immediately address the humanitarian issues at the border.
- A long-term approach to address the root causes of migration by supporting public safety and sustainable economic development efforts by governments and NGOs in Honduras, El Salvador and Guatemala.
- The U.S., working with UNHCR, to develop a regional refugee response that includes refugee resettlement to the U.S., Canada, Costa Rica, and other Latin American nations.
Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said: “The Trump administration has a track record of manufacturing and screaming “crisis” to justify radical and inhumane policies to deter those seeking safety — policies most Americans oppose. Trump and his administration did this with their failed family separation policy, legal and regulatory efforts to indefinitely detain children with minimal protections by attempting to end the Flores Agreement, and the recent emergency regulation and Presidential proclamation to prohibit asylum claims clearly authorized by Congress. Congress must step in and prevent Trump from usurping their constitutional power and to ensure taxpayer dollars are spent in ways that work and that most Americans support.”
David Leopold, Counsel to DHS Watch, Chair of Immigration at Ulmer & Berne and former President of the American Immigration Lawyers Association, said: “There is no national emergency. There is a Trump-created humanitarian crisis which has resulted in the death of migrant children and scores of families living in malodorous chaos on the doorstep of the U.S. What we need from the Trump administration is responsible leadership and concrete policy solutions, not a phony “national emergency” concocted to finance a wall which the American people neither want nor need.”