Update, February 17:

In my forthcoming comment: "Trump's national emergency declaration is an attempt to destroy US democracy" I will discuss two perceptive articles showing why Trump's fake border "emergency" is so dangerous for our freedom.

One Article, by Patrick Martin in presenza (February 16) is called:

Trump's state of emergency: A step toward presidential dictatorship

The other article dated February 14 by Yascha Mounk in slate.com is called:

Trump's national emergency to build his border wall is the most autocratic act of his presidency

These two articles show without any serious question that the battle is not just about the Wall, but goes far beyond that. Trump is using his fanatic hatred of brown immigrants in an attempt to set himself up as America's dictator and destroy our democracy.

The Republican leadership's cowardly willingness to act as Trump's enablers, together with weak and half-hearted opposition by the Democrats, who seem scared even to talk about the impeachment proceedings which should already have been well under way for a host of immigration-related reasons beginning with his Muslim Ban, as well as an even bigger slew of non-immigration reasons; could well signal the end of America's 250 year-old experiment with freedom and basic human rights.

My original comment follows below.

All Americans who care about the future of our democracy should be not only very concerned, but appalled, at Donald Trump's finally carrying out his repeated threat to declare a "national emergency" in order to build his Wall against brown immigrants in absolute defiance of Congress. For an earlier report, See: CNN: February 14:


By overriding the Constitutional authority of Congress to determine budget appropriations in order to "protect" the US from the entirely imaginary "threat" of being inundated by "42 million Latin American" immigrants, (according to his latest tweet, see: Daily Caller, February 10):


Trump is now following an all too familiar fascist playbook of using racial hatred as an excuse to seize absolute power.

Harvard professor Cass Sunstein and many other respected professors of law and related disciplines, including Martha Minow, dean of Harvard Law School, warn about Trump's use of anti-immigrant propaganda, especially relating to immigrants from Muslim countries, as part of a larger agenda of undermining the foundations of American democracy in the March, 2018 book Can it Happen Here? See the review in The Guardian:(April 7, 2018):


By declaring a national emergency, Trump would be obviously gambling on ultimate approval of this egregious abuse of executive power by a Supreme Court which now includes two of his own appointees, and which had previously approved his Muslim ban assault on the Constitutional guarantee of religious freedom.

There is a difference between these two situations however (which hopefully might have some meaning for Chief Justice Roberts, even if Justices Gorsuch and Kavanaugh don't care).

In the Muslim ban case, there was a least a fig leaf of a history of terrorist groups having been active, or possibly even still being active, in at least some of the countries on the banned list.

In the case of Trump's Wall, there is no terrorist threat except in the imaginations of many Trump supporters who are "terrified" that white Americans may one day be in a minority.

Nor is there any real crime threat that a Wall would make any difference in dealing with. It is well known that, according to reliable studies, immigrants, even "illegal" ones, have a lower crime rate than native born Americans.

If Trump's "national emergency" reaches the Supreme Court, as would be very likely, the "terrorism" fig leaf that the Court's majority used to disregard the US Constitution in that case would not exist in this one.

But it is not only US rule of law that would be seriously endangered by a Trump national emergency declaration. This would also be a serious violation of international human rights law.

Fionnualla Ni Aolain, Special Rapporteur on the Protection and Promotion of Human Rights while Countering Terrorism, explains the many safeguards against abuse of executive power to declare a national emergency that exist under international law in her January 14 article:

Int'l Human Rights Law and Trump's Invocation of Emergency Powers


She writes:

"In my Report to the Human Rights Council last March, I charted the abuse of emergency powers by states as they invoke vague and ill-defined terrorism or national security threats to justify the resort to exceptional powers. President Trump's early reliance on terrorism as a basis for justifying the use of national emergency powers on the Southern US border, absent compelling and empirically robust data, was illustrative of a broader pattern by non-democratic states to rely on the bogey man of global terrorism as a generic means to circumvent domestic constitutional and legislative norms." (Italics added.)

I will discuss Ni Aolain's article, including the specific provisions of international law which prohibit the abuse of using national security or national emergency claims to overturn democracy and the rule of law, in future comments.

Roger Algase
Attorney at Law