“A Massive Abuse of Emergency Power”: Legality of Trump’s Move to Deploy Troops to Border Is Questioned

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AMY GOODMAN: On Monday, President Trump signed a number of executive orders on immigration. One such order aims to end birthright citizenship, which is protected by the 14th Amendment of the U.S. Constitution. Trump also declared a national emergency at the southern border.

PRESIDENT DONALD TRUMP: First, I will declare a national emergency at our southern border. All illegal entry will immediately be halted, and we will begin the process of returning millions and millions of criminal aliens back to the places from which they came. We will reinstate my Remain in Mexico policy. I will end the practice of catch and release. And I will send troops to the southern border to repel the disastrous invasion of our country.

AMY GOODMAN: To talk more about Trump’s decision to declare a national emergency at the southern border, we’re joined by Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, her recent piece for The Atlantic headlined “Emergency Powers Are About to Be Tested.”

Elizabeth, thanks for being with us. Can you lay out what it means to declare an emergency, what it means for the military on U.S. soil?

ELIZABETH GOITEIN: So, the National Emergencies Act authorizes the president to declare a national emergency. When he does that, that declaration unlocks powers that are contained in about 150 different provisions of law that span the entire range of things that a government might do.

In this particular case, the powers that Trump invoked include a power that he invoked before, in 2019, when he declared a national emergency at the southern border. And that’s a power that allows him to essentially reallocate Department of Defense funds for military construction projects. And once again, he’s going to use that, essentially, to try to build the southern border wall. So we’re right back where we were. Now, all of that was litigated in the courts, but before there could be any final resolution, President Biden took office and terminated the emergency declaration, which mooted all of it.

The second thing that President Trump is going to do is invoke a provision that allows the secretary of defense to call up reservists, including the National Guard, in order to make them available to provide support to the Department of Homeland Security at the southern border. Now, this actually is not new, either. The military has been serving this role — namely, providing support, logistical support, to the Department of Homeland Security at the border — for 20 years. And Biden himself used emergency powers in 2023 — he was relying on a 2021 declaration of emergency for international drug trafficking — to call up reservists, to make more manpower available to help DHS at the southern border. Now, this kind of logistical support is very different from having the military participate directly in the apprehension and detention of migrants, which is something the president could only do by invoking the Insurrection Act. And he did not invoke the Insurrection Act yesterday, but he did direct the attorney general and — I’m sorry, you have the Department of Homeland — secretary of homeland security and the secretary of defense to submit a report in 90 days recommending whether or not he should invoke the Insurrection Act.

JUAN GONZÁLEZ: And, Elizabeth, he also mentioned that he would invoke the Alien Enemy Act of 1798. Could you talk about what provisions of that act are still in effect and what it means?

ELIZABETH GOITEIN: So, the Alien Enemies Act is the last remaining vestige of the notorious Alien and Sedition Acts from back in 1798. And what this law allows, it applies during a declared war or a proclaimed invasion or incursion or a threat of invasion or incursion by a foreign government or nation. And when those conditions exist, at least in theory, the law allows the president to summarily detain and deport any non-U.S. citizen over the age of 14 who is a citizen of or was born in the enemy nation. So, I know that’s a mouthful, but, basically, what it does is it is a wartime authority that means that the president can detain and deport people who were born in the enemy nation, without going through the hearings and the procedural protections of immigration law, and it can even be used against lawful permanent residents, people who are lawfully in this country and who have been lawfully in this country for decades. So, that’s what makes it such a potent and frightening and, frankly, we believe, unconstitutional law.

And so, what the president has said he is going to do — well, he asked various Cabinet members to prepare, essentially, for an invocation of the Insurrection Act. He gave them 14 days. And he says he’s going to use the act against drug cartels in the United States. The obvious problem is that drug cartels are not foreign governments. They are not foreign nations. And they are not perpetrating an armed invasion of the United States. That is not an act of war, which is what the Alien Enemies Act was clearly intended for.

So this is a massive abuse of emergency power. And I should say, because I didn’t say it before, the declaration of a national emergency is also an abuse of emergency powers, because these emergency powers are intended to address sudden, unexpected crises — that’s the definition of an emergency — that are moving too quickly for Congress to be able to address. That is not unlawful immigration at the border. It is not sudden or unexpected, and it is something that Congress can and should be addressing through comprehensive immigration reform.

AMY GOODMAN: Elizabeth Goitein, we want to thank you for being with us, co-director of the Liberty and National Security Program at the Brennan Center for Justice. We’ll link to your piece in The Atlantic, “Emergency Powers Are About to Be Tested.”