by Diane Rufino (also referencing an article by Publius Huldah), January 15, 2019
QUESTION: Can President Trump seal off our southern border?
There are three theories, perhaps even four, upon which President Trump can close our southern border, including providing a permanent, physical barrier:
(1) IMMIGRATION AUTHORITY. The President can suspend entry of individuals from Mexico and countries of Central and South America, per an express provision of the US Immigration & Nationality Act, and per the opinion of the Supreme Court in the recent case of the so-called “Muslim ban.” Since the restraints in place at the order are currently ineffective to prevent the uncontrolled illegal entry into our country, a physical barrier would be necessary (under the “Necessary & Proper Clause”)
If Trump takes this option, he neither needs to get Congressional approval nor approval of (or review from) the courts. Neither can stop him because they have already given him that authority and recognized that he was given that authority. Congress did so in federal law (Title 8, Chapter 12 of the US Code – “Immigration & Nationality Act”) and the Supreme Court re-affirmed (in Trump v. Hawaii, June 2018).
Title 8, Chapter 12 of the U.S. Code, which governs “inadmissible aliens,” reads:
“Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
Notice some key language in that statutory provision: “for any such period as he shall deem necessary” and “impose on the entry of aliens ANY restrictions he may deem to be appropriate.”
Again, every power that Congress is delegated (Article I, Section), including the power it willingly delegated to the President on this particular immigration issue, is subject to the “Necessary & Proper” Clause which the Supreme Court interpreted as “pretty much any means necessary which the government believes will help carry out the particular responsibility.”
The president has the authority to close the borders. And no lower court can stop him with an injunction….. if he chooses to go this route.
(2) DUTY TO REPEL INVASION. Congress can seal off the border pursuant to the authority granted to it to call up the militia (“to repel invasions”; Article I, Section 8) and pursuant to the DUTY delegated to the federal government in general to repel invasion (Article V, Section 4). Additionally, Article II, Section 3 requires the President, as the Chief Executive of government power, to take care that the laws be faithfully executed.
Article I, Section 8 authorize s Congress to call up of the Militia for three (3) purposes: To execute the Laws of the Union; To suppress Insurrections: and To repel Invasions.
Article IV, Section 4 reads: “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”
Article IV talks about a GUARANTEE. It delegates an absolute responsibility on the federal government to provide certain protections for the States – to guarantee each State a republican form of government and to protect each against invasion. States are entitled to EXPECT this absolute guarantee. So, if Congress refuses to do its part, then the responsibility shifts to the President. In the end, the federal government MUST – absolutely MUST – protect all states against an invasion.
Indeed, there is an invasion of illegal aliens into our country, imposing severe burdens on our resources (including education, health services, social services, our tax dollars, and our law enforcement system. Taxpayers are entitled to the expectation that the money siphoned off their hard work and property will go only to those who are legal citizens in this country. More seriously, there is an invasion of illegal criminals, gangs, drug cartels and drug traffickers, and human traffickers. Prisons house disproportionate numbers of Hispanic criminals.
There are 48 US-Mexico border crossings – LEGAL crossings. But thousands upon thousands each year evade these legal points of entry to come to this country illegally, hoping to take advantage of our government’s refusal to enforce our country’s immigration laws and to take advantage of every benefit that America offers. (Note though that is the US were to go to war and impose a draft, illegals would not be called). There are approximately 414,000 illegals apprehended each year by a severely-limited and constrained task force of border agents. Imagine how many make it across the border and are not able to be apprehended. The numbers are staggering. And in the past several months, the rate of illegal crossings has increased 37%. New American (online journal) estimates that 14,000 of these are violent criminals.
Most aliens that come to the United States illegally do so for a better life, for a chance to make more money. But the open border and uncontrolled illegal immigration brings other problems into our country. The United States is one of the key destination countries, if not the key destination country, for thousands of men, women, and children trafficked from all areas of the world. These victims are trafficked for the purposes of sexual and labor exploitation. Many of these victims are lured from their homes with false promises of well-paying jobs; instead, they are forced or coerced into prostitution, domestic servitude, farm or factory labor, or other types of forced labor. Between 14,500 and 17,500 people are trafficked into our country each year, certainly prompting a humanitarian crisis.
And then there is the increase in drug smuggling across the border. Seizures of hard drugs like heroin, methamphetamine (meth), cocaine, and fentanyl spiked to the highest levels in years. The numbers reflect the trend of cartels turning to more potent drugs in pursuit of profits, as many of the individual states have decriminalized the use of marijuana, both for medicinal and recreational purposes. In the past two years, enough fentanyl (a synthetic opioid which is 50 times more potent than heroin and 100 times more potent than morphine, and can be fatal the first time a person takes it) came into our country from across the southern border to kill every person in the United States. Two Hispanic men were arrested last year in NJ with enough fentanyl to kill the entire population of New Jersey and New York City (with intent to distribute). In NJ alone, in 2016, there were over 800 overdoses from fentanyl, and fentanyl was found in 2% of heroin that was tested in the state. Users are unaware of this. Just recently, in Nebraska, two Hispanic men were arrested for possession of enough fentanyl to kill about 28 million people (with intent to distribute and sell).
Finally, there is a significant increase in MS-13 gang membership and activity. MS-13 is a notoriously brutal gang based in El Salvador. In 2005, the Bush administration waged war on the deadly gang (similar to what President Trump is doing), and gang activity was stifled, but under the Obama administration, especially from 2012-2016, the gang has been able to rebuild itself. This resurgence represents a very serious threat to public safety in communities where MS-13 has rebuilt itself. The resurgence is directly connected to the illegal arrival and resettlement of more than 300,000 Central American youths and families that came here, undeterred, during the Obama years. All criminal gangs are a threat to public safety, but MS-13 is a unique problem because of the unusually brutal crimes its members have committed, its success in using intimidation to victimize and control people in its territory, and its focus on recruiting young members, often in schools. Technically, because most of the gang members are illegal, they could be targeted and removed from the communities they terrorize by law enforcement and ICE. However, because of sanctuary policies, and the proliferation of sanctuary states, cities, and communities, these gang members are protected from apprehension.
Taken together, it sure sounds like our country is being invaded. And that being so, every state is entitled to protection against it by the federal government. The simplest way to protect the states is simply to enforce our immigration laws and to seal and secure the border with a physical barrier. Make no mistake, we are suffering an invasion of individuals who are first seeking to evade our laws (the cornerstone of our society), and secondly, to do us harm (whether intentional or not, and whether violent or simply by overloading our resources, inciting protests and instability, or presenting a political crisis).
(3) DECLARE A NATIONAL EMERGENCY (pursuant to the National Emergencies Act). The goal of this approach is to get border wall funding thru the National Emergencies Act, by diverting money allocated to the military to use to build the wall. The reason this option is an attractive option to President Trump is because once he declares a “national emergency,” a decision that is entirely within his discretion (and which many presidents before him did, for much more urgent matters), he is able to set aside many of the legal limits on his authority. He would become vested with certain “emergency powers,” such as by instantly becoming Commander-in-Chief of the armed forces, or by vesting in him a broad, undefined executive powers. President FDR used national emergency powers to intern Japanese-Americans after the attack on Pearl Harbor, President Bush used them to pursue warrantless wiretapping related to the war on terror, and President Obama on account of the Swine Flu outbreak in 2009. (Actually, Obama claimed a state of emergency, thus invoking the Act, a total of 12 times].
The National Emergencies Act of 1976 authorizes presidents to issue an emergency declaration, but under certain constraints; he can only use powers Congress has already codified by law and he has to say which powers he’s using. The 1976 law was actually passed to rein in presidential abuse with relation to national emergencies. Past presidents such as FDR, Truman, and Nixon abused the power [In the 1952 case, Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court addressed the constitutionality of President Truman’s seizure and control of most of the country’s steel mills, in anticipation of a strike by the United Steelworkers of America. The Court ruled that Truman had over-stepped his authority].
The first thing President Trump would need to do is issue an emergency proclamation, explaining the nature of the emergency. Then he would need to identify which powers he intends to use. If Trump were to try to get border wall funding through the National Emergencies Act, the question then becomes which existing laws he could use to get the money. The Brennan Center for Justice believes there are at least 130 laws that contain special powers Trump could access (other legal experts say there are as much as 136 laws). Apparently, the law Trump is particularly interested in is one that allows him to reallocate military spending on construction projects for the wall. One law allows the defense secretary, after a national emergency declaration, to direct the army’s civil works program to construct a structure needed for national defense and use the military budget to do it. Another lets the secretary direct other military services for construction projects. For example, money could come out of the budget for building housing on military bases for service members and into the budget for the wall.
The White House has also reportedly directed the Army Corps of Engineers to take a look at its budget for potential funds to divert to the wall, including $13.9 billion from a disaster spending bill passed by Congress last year designed for relief projects in California, Florida, Texas, and Puerto Rico.
Alternatively, Trump could declare a “state of immigration emergency,” which unlocks an immigration emergency fund, which is generally supposed to be used to help states feed and house migrants and process their claims. The problem with this choice is that the immigration emergency fund doesn’t have nearly enough money to meet the amount requested – $5.7 billion.
Note, though, that the National Emergencies Act contains a mechanism for Congress to overrule the president by passing a joint resolution (both House and Senate). With Democrats in control of the House, it would presumably pass there easily, but most likely it would not pass the Senate, where Republicans recently increased their majority.
(4) THE PRESIDENT’S DUTY TO ENSURE THE LAWS ARE ENFORCED. Again, as mentioned above, Article II, Section 3 requires the President, as the Chief Executive of government power, to take care that the laws be faithfully executed. If Congress won’t provide the necessary funding (less than 1% of the total US budget, and a fraction of what Congress spends on “pork” projects), than President Trump may have to accept funding from other sources, including donations.
Those are my thoughts anyway.
The real authority, however, is my good friend, renown Constitutional attorney and activist, Publius Huldah. In her latest article , “Yes! Trump Has the Constitutional Authority to Secure Our Southern Border,” she goes into detail as to why President Trump has the authority to secure our southern border. Please take a read:
YES!! TRUMP HAS CONSTITUTIONAL AUTHORITY TO SECURE OUR SOUTHERN BORDER, by Publius Huldah
Instead of reading our Constitution and seeing what it says, Americans get their legal advice from what “everybody says.”
Now, they are hearing about “emergency powers”, and are in a tail spin. Did Congress’ “Emergency Powers Act” delegate to the President the power to call whatever he wants an “emergency” and then do what he deems best?
Our focus shouldn’t be on what can be called an “emergency,” but what does our Constitution authorize the federal government to do (if anything) with respect to the hot topic of the day?
Let’s look at Migration (immigration) in the context of the hordes of aliens storming thru our Southern Border. What does our Constitution say about it?
Art. I, § 9, clause 1, delegates power over Migration (immigration) to Congress. So Congress is to make the immigration laws; and the President, as Chief Executive, is to put Congress’ laws into effect.
Art. IV, § 4 REQUIRES the United States to protect each of the States against Invasion.
Art. I, § 8, clauses 15 and 16, authorize the calling up of the Militia for three (3) purposes: to execute the Laws of the Union; to suppress Insurrections; and repel Invasions.
Art. II, § 3 authorizes the President to recommend to Congress such measures as he deems necessary and expedient; to convene Congress on extraordinary occasions; and requires him to take care that the laws be faithfully executed (that includes the immigration laws.)
Art. II, § 2, provides that the President is Commander-in-Chief of the armed forces. He is Commander-in-Chief of the Militia when it is called into active service of the United States. As noted above, the Militia may be called into active service to “repel invasions”.
So those are the Constitutional Provisions which apply to the invasion of our Southern Border.
America is finished if we don’t control our Southern Border. Congress and the President have clear constitutional authority – actually, they have the DUTY – to control our Southern Border.
The best way the control the Southern Border is to build a wall. [I know from personal observation during the Cold War that the wall the Soviets built between East and West Germany prevented people in the East from escaping to the West.]
What if Congress refuses to fund the wall? Must the President tell the American People, “Well, I tried. But my hands are tied. You better get ready for civil war.”
No! Art. IV, § 4 imposes on the United States the Duty to protect each of the States against invasion. If Congress won’t do it, the President must. He is Chief Executive of the United States. For him to refuse to act for the reason that Congress won’t fund the wall would be as contemptible as the Husband and Father who refuses to get armed to protect his Family because the government says he can’t be armed.
So, the President may solicit donations from the American People for funds, labor, and construction materials, to build a wall.
About “calling up the Militia” to “repel invasions” — Well, we no longer have the Militia provided for at Art. I, §8, clauses 15 and 16. During 1903, the American People and their federal and state legislators (who had all “mainlined” on Progressivism) went along with the federalizing of the Militia. This was done with the federal Dick Act of 1903 (Militia Act of 1903), which converted the Militia into the National Guard, which is an adjunct of the federal military.
If we still had the “Militia of the several States,” it would be obvious that the Militia must be – and could be – called into national service to repel the “invasion” coming through our Southern Border.
But since we no longer have the Militia, we must rely on the closest thing to a Militia we have left, which is the National Guard. Congress has passed laws which authorize the President to call the National Guard into national service. The Militia Act of 1903 established the creation of the National Guard of the United States as the primary organized reserve force for the U.S. armed forces, thus federalizing state militias. The National Defense Act of 1916 gave the President authority, in case of war or national emergency, to mobilize the National Guard for the duration of the emergency. And the National Guard Mobilization Act of 1933 made the National Guard a component of the Army
The point is that the President probably has authority to call up the National Guard to protect our Southern Border and the construction workers while the Wall is being built.
But if push comes to shove, the President has the Clear Duty to protect our Southern Border and to “preserve, protect and defend the Constitution of the United States.”
Remember – the Questions are always: “What does the Constitution authorize” & “What Duties does the Constitution impose on the federal government?”
There is no substitute for reading the Constitution for yourself. Article by Article – and then seeing how the Articles all work together – hand in glove.
Publius Huldah, “Yes! Trump Has the Authority to Secure Our Southern Border,” Publius Huldah blog, January 15, 2019. Referenced at: https://publiushuldah.wordpress.com/2019/01/15/yes-trump-has-constitutional-authority-to-secure-our-southern-border/
Cort Kirkwood, “Trump Can Close the Border, Former Federal Prosecutor Says,” New American, October 25, 2018. Referenced at: https://www.thenewamerican.com/usnews/immigration/item/30446-trump-can-close-the-border-former-federal-prosecutor-says
Hilary Hurd, Yishai Schwartz, “Supreme Court Travel Ban Ruling Summary,” Lawfare, June 26, 2018. Referenced at: https://www.lawfareblog.com/supreme-court-travel-ban-ruling-summary
11 Facts About Human Trafficking, Do Something. Referenced at: https://www.dosomething.org/us/facts/11-facts-about-human-trafficking
Raphael Carranza, “Harder Drugs, Higher Profits: US-Mexico Border Sees a Shift in the Kinds of Drugs Seized,” azcentral, February 23, 2018. Referenced at: https://www.azcentral.com/story/news/politics/border-issues/2018/02/23/united-states-mexico-border-patrol-drugs-seized/353260002/
“Synthetic Opioid Overdose Data,” Center for Disease Control. Referenced at: https://www.cdc.gov/drugoverdose/data/fentanyl.html
Jessica M. Vaughan, “MS-13 Resurgence: Immigration Enforcement Needed to Take Back Our Streets,” Center for Immigration Studies, February 21, 2018. Referenced at: https://cis.org/Report/MS13-Resurgence-Immigration-Enforcement-Needed-Take-Back-Our-Streets
Emily Stewart, “How Trump Could Use a National Emergency to Get His Border Wall, Explained,” VOX, January 11, 2019. Referenced at: https://www.vox.com/policy-and-politics/2019/1/8/18172749/trump-national-emergency-government-shutdown-wall
Elizabeth Goitein, “What the President Could Do If He Declares a State of Emergency,” The Atlantic, January-February issue. Referenced at: https://www.theatlantic.com/magazine/archive/2019/01/presidential-emergency-powers/576418/ [Elizabeth Goitein is a co-director of the Liberty and National Security Program at the Brennan Center for Justice]