National emergency: Trump tweet shows why he shouldn’t declare one

The president of the United States made it clear that immigration was a priority for him. But while his party controlled the Senate, it didn’t control the House, and he wasn’t able to get what he wanted — a disappointment to his base. So he took unprecedented action, using existing executive-branch powers to do as much as he could to accomplish his goal.

It looks like that’s going to be the story of Donald Trump’s border wall, which (according to Senate Majority Leader Mitch McConnell) the president plans to sign an emergency declaration to build, after Congress appropriated only $1.6 billion for border barriers in a funding bill expected to pass Thursday.

But when the same story happened under President Obama, one of his most outspoken critics was one Donald J. Trump.

In yet another proof of one of the enduring truths of the Trump era, There Is Always A Tweet:

Trump tweeted this in November 2014, when President Obama announced a range of executive actions on immigration, including the expanded use of “deferred action” to protect parents of US citizen children from deportation (and expanding the existing deferred-action program to cover more unauthorized immigrants who’d come to the US as minors). Both of those actions were ultimately stopped in court, with the Supreme Court deadlocking in 2016 and allowing a lower court’s ruling against Obama to stand.

One of the key legal arguments against the policy was that it was a usurpation of Congressional authority: Congress had considered protecting unauthorized immigrants via allowing them to get legal status when it debated comprehensive immigration reform in 2013, so the fact that it had not passed that bill was offered as evidence that it did not want those immigrants protected.

What makes Trump’s tweet especially apt now, though, is that Obama waited over a year after the Senate passed its immigration bill. It was clear by the end of 2013 that the House had no intention of picking up the Senate’s bill, or introducing a comprehensive bill of its own, but Obama waited until after the 2014 midterm elections to take the executive route.

Trump, on the other hand, literally said while negotiations with Congress were ongoing that if he was unable to negotiate with Congress, he would sign an emergency declaration. As early as January 10th, during the government shutdown, he told Fox News’ Sean Hannity as much: “If we don’t make a deal with Congress, most likely I will do that. I would actually say I would.”

Whether Trump’s emergency declaration is a “subversion” of the Constitution is a question for the courts, which will almost certainly be hit with a bevy of lawsuits as soon as the ink on the declaration is dry. But it’s entirely likely that Donald Trump’s admission that an emergency declaration was a Plan B if Congress didn’t give him what he wanted — an admission he’s made, implicitly or explicitly, several times — will be used against him in court. 2014 Donald Trump could have predicted as much.

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