Update: February 18,.6:40 pm:

Donald Trump may be in for a surprise if he thinks that the unfortunate and ill-considered Muslim ban decision (Trump v. Hawaii) guarantees him "loyalty" of the Court's majority this time.

There are some important differences which Chief Justice Roberts, who on occasion votes with the Court's liberals, and who obviously had deep reservations about the Muslim ban decision, may be willing to take into account in order to strike down Trump's phony "national emergency" assault on America's democracy.

I will explain further in my forthcoming comment.

My original comment follows:



In the wake of Donald Trump's rambling, disjointed and at times almost incoherent February 16 speech announcing that he would declare a concocted "national emergency" in order to ignore the democratic and Constitutional provisions giving Congress the sole power to appropriate money, and that he would defy the clear mandate of the elected representatives of the American people against building a border Wall to keep non-white immigrants out of the US; a speech in which he also made a savage and utterly delusional attack against legal family and Diversity immigrants who have nothing to do with the Mexican border issue, the media focus, as is typical, has trivialized this latest development as just another partisan battle.

Democrats who, let by Nancy Pelosi, oppose the Wall as a symbol of discrimination against immigrants by race, color or religion, vs. Republicans (a dwindling number of them) who support, (or are afraid to oppose) the Trump - Miller - .Steve King - Ann Coulter goal of keeping America white: it it all just about politics - so goes the usual media spin.

But the coming battle over Trump's "national security" declaration, including an expected slew of lawsuits seeking to block the the declaration, is not about partisan politics. Nor are the expected lawsuits primarily about the rights of ranchers - or butterflies - along the Mexican border, even though we are also seeing superficial media stories along that line too.

What is really at stake in Trump's "national emergency" declaration is the future of America's democracy - whether this nation will continue to be governed by the Constitution and the rule of law,, or whether the US will turn into a one-man dictatorship - as has happened in other countries where despots have claimed "national emergency" - often together with using prejudice against unpopular minorities - as a means to seize absolute power.

Oneof theclearest and most comprehensive descriptions of how Trump's "national emergency" strategy has been used by other dictators and would be dictators to overthrow democracy in their countries is contained in a January 12 op-ed article by Steven Levitzky and Daniel Ziblatt, two professors of government at Harvard (where I also majored in government as an undergraduate several decades ago) and authors of the book How Democracies Die.

Their article is called:

Why Autocrats Love Emergencies

https://www.nytimes.com/2019/01/12/o...ency-wall.html

They write:

"From Getulio Vargas and other better known dictators in the 1930's to Indira Gandhi and Ferdinand Marcos in the 1970's and on to Vladimir Putin and Recep Tayyip Erdogan more recently, autocratic-minded leaders have long used national emergencies - some real, some fabricated - to claim extraordinary powers. One of our greatest concerns about Donald Trump's presidency has always been that he would exploit (or invent) a crisis in order to justify an abuse of power. Recent events have given this concern new immediacy."

Then, citing the examples of other strongmen, such as Brazil's President Vargas in 1937 and President Marcos of the Philippines in 1973, who used fake or real crises to establish dictatorships (a 1933 incident in Germany known as the Reichstag Fire also comes to mind, even though they do not mention this) the authors continue:

"Although President Trump operates in a different political environment, his behavior, particularly since the November midterm elections, betrays similar autocratic instincts... Mr. Trump has refused to accept the failure of his border wall project. Unable to obtain the necessary votes in Congress, the president reckless forced a government shutdown. When that didn't get him his wall, he moved to circumvent Congress altogether by inventing - if not yet declaring - a national emergency...That is how autocrats respond to legislative opposition. Following in the tradition of Vargas and Marcos, Mr Trump fabricated a security threat to make the case for bypassing Congress."

The authors conclude:

"And any reckless use of emergency powers would set a dangerous precedent for overriding the legislative branch. Unlike other national emergency declarations, this one would openly defy the will of Congress."

The two professors end with a warning which no one who cares about the survival of democracy in America should ignore, even "conservatives" who, like Trump, want to build a Wall against brown immigrants at all costs:

"This raises a terrifying question: How would a president who is willing to fabricate a national emergency over a simple legislative impasse behave during a real security crisis?"

One could also well ask whether Trump might also use the "national emergency" pretext to rewrite the immigration laws in other ways without the consent of Congress, such as by trying to abolish extended family immigration (which he calls by the racially pejorative term "chain migration") and the Africa-friendly Diversity visa - objectives that he would not be able to accomplish simply by executive order.


At the very least, America could be facing the prospect of a one-man dictatorship over immigration law, if not over the rest of our legal system.

As the above shows, this article was written in January, more than a month before Trump finally declared his baseless, fact-free, "national emergency" In the light of his actual declaration (or in one case, immediately prior to it) two other analysts, John Hopkins professor Yascha Mounk, and commentator Patrick Martin, have also written telling explanations of why Trump's national emergency declaration as part of his agenda of keeping non-white immigrants out of the United States is so dangerous for our democracy.

I will discuss their comments in a forthcoming blog..

Roger Algase
Attorney at Law