Immigration Law

Bipartisan Declaration of Former Senior U.S. Officials Refuting President’s Claim of a National Emergency at Southern Border

Just Security, Feb. 25, 2019

"A bipartisan group of 58 former U.S. government national security officials have submitted a Joint Declaration that directly challenges President Donald Trump’s proclamation of national emergency to allow the use of billions of dollars in otherwise unavailable funds to build a wall at the southern border. The declarants notably include officials who served in the Trump administration, including the former U.S. Ambassador to Mexico, U.S. Ambassador to Panama, Director of the National Counterterrorism Center, and Assistant Secretary for International Engagement at the U.S. Department of Homeland Security. The declarants “support the President’s power to mobilize the Executive Branch to respond quickly in genuine national emergencies” but state that “under no plausible assessment of the evidence is there a national emergency today that entitles the President to tap into funds appropriated for other purposes to build a wall at the southern border.”

In eight steps, the joint declaration refutes the factual basis for the President’s emergency declaration, relying, in detail, on “evidence in the public record, including the administration’s own data and estimates,” to show that:

  • Illegal border crossings are at near forty-year lows;
  • There is no documented terrorist or national security emergency at the southern border;
  • There is no emergency related to violent crime at the southern border;
  • There is no human or drug trafficking emergency that can be addressed by a wall at the southern border;
  • This proclamation will only exacerbate the humanitarian concerns that do exist at the southern border;
  • Redirecting funds for the claimed “national emergency” will undermine U.S. national security and foreign policy interests;
  • There is no basis for circumventing the appropriations process with a declaration of a national emergency at the southern border; and
  • The situation at the border does not require the use of the armed forces, and a wall is unnecessary to support the use of the armed forces.

The last of those propositions has special legal significance. The administration’s plan to transfer $3.6 billion requires not only a declaration of a national emergency, but also a determination that the situation requires use of the armed and that the wall is necessary to support the armed forces.

Finally, although this is not the first declaration of national emergency to receive criticism, the former senior officials argue that this assertion of a national emergency is unprecedented in that it has been invoked to address a situation:

(1) that has been enduring, rather than one that has arisen suddenly; (2) that in fact has improved over time rather than deteriorated; (3) by reprogramming billions of dollars in funds in the face of clear congressional intent to the contrary; and (4) with assertions that are rebutted not just by the public record, but by his agencies’ own official data, documents, and statements.

The full declaration is available here."