Opinion: When is a national emergency not a national emergency? When Trump says it is

President Trump after stepping off Marine One on the South Lawn of the White House on Sunday. He delivers the State of the Union address Tuesday.
(Alex Brandon / Associated Press)

There’s growing speculation that President Trump will use his State of the Union speech Tuesday to announce that he’s declaring a national emergency in a gambit to free up federal money to build his wall along the U.S.-Mexico border. If he does, that would be further proof that whatever conditions are on the border, they do not rise to the level of a national emergency.

At best, it’s a political emergency – for the president, whose oft-promised border wall has failed to get sufficient support from Democrats and Republicans in Congress to make it into the Department of Homeland Security’s annual spending bill.

And if the president announces the declaration Tuesday in what is traditionally a politically framed address to a joint session of Congress and the American public, he will tacitly admit that it is not an emergency that threatens the nation, no matter how much he disparages migrants moving northward through Mexico.


You’ll hear the State of the Union and then you’ll see what happens right after the State of the Union. Okay?

— President Trump

In fact, Trump made clear early on that his contemplation of a national emergency declaration was not the product of sober decision-making by an executive facing a fast-moving crisis, but a bargaining chip in the hands of a president trying to bully Congress into bending to his will.

He failed at the politics, and for the sake of the nation I hope he fails at the legalisms if and when he issues his declaration. And he has already made his own legal footing shaky.

In speaking to reporters last month during the shutdown, Trump made it clear that declaring a national emergency was all about the politics of getting $5.7 billion in wall funding.

“If we don’t make a deal — I mean, I would say 100%, but I don’t want to say 100%, because maybe something else comes up,” he said. “But if we don’t make a deal, I would say it would be very surprising to me that I would not declare a national emergency and just fund it through the various mechanisms.

“And, by the way, there’s more than one mechanism. There’s various mechanisms. And the lawyers tell me 100%. It would be nice if we could make a deal. But dealing with these people is ridiculous. I don’t know if they know how to make a deal.”


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Trump also invoked President Obama’s description of the border as “an urgent humanitarian situation,” which Obama did — but in a different context. Obama was dealing with an influx of unaccompanied minors showing up at the border and seeking protection, which overwhelmed the system’s capacity to care for them before releasing them to guardians or foster care.

But families who make a credible argument that they face persecution and thus deserve a court hearing on their asylum application can be released pending deportation proceedings, which the Trump administration has done despite the bluster about “catch-and-release.”

And a wall would do nothing to affect that flow, since it consists of people running from their native lands out of desperation over violence and deep poverty. Rather than trying to sneak in, most are presenting themselves to border agents and seeking asylum.

That will continue regardless of the size and scope of border barriers, be they fences, walls or turnstiles at a port of entry.

And overall apprehensions along the southwest border, the focus of Trump’s fear and fury, are half what they were a decade ago, and a quarter of the level in 2000.


Some emergency.