Update, February 23, 1:27 pm:

Attorney Lloyd Green, a former campaign counsel to George H.W.Bush, writes in The Guardian on February 23 that the dispute about Trump's Wall and his authoritarian "national emergency" pretext for building it is, at bottom, really a dispute over America's racial demographics and the unwillingness of white elitists to accept minority status, as the nation grows more ethnically diverse through immigration.


Trump is wrong about the wall but he might be right to fight it.


I will have more to say about this article in a forthcoming topic. My earlier update and original comment follow below:

The Washington Post reports on the evening of February 22 that the main justification for Trump's "national emergency" claim, namely that America is "flooded" with criminal immigrants is a total lie, according to ICE statistics.

See, WP:

When Trump declared national emergency, most detained immigrants were not criminals.

The WP story reports that at the time when Trump declared a "national emergency", 63 per cent of ICE detained immigrants had no criminal record.

My original comment appears below,

When Donald Trump announced his "national emergency" declaration on February 16, he acknowledged that he was likely to run into opposition in the lower courts, but concluded, not without a certain smugness, that he hoped to get a "fair shake" in the Supreme Court.

He was referring, obviously, to the fact that the Court's so -called "conservative" bloc includes Clarence Thomas, who is so far to the right that he has just indicated that he might be willing to overturn free speech guarantees, not only for legal immigrants, but for American citizens, which have been in place for longer than anyone can remember.

It also includes two Justices whom Trump, with his usual contempt for the notion of separation of powers in our democracy, has referred to as "Trump judges", drawing justified rebuke from Chief Justice Roberts.

However, one has to concede that Neil Gorsuch, who eloquently defended the rights of an "illegal" immigrant against President Obama's administration's attempted deportation as a 10th Circuit Judge (In Garcia-Brizuela), has not so far shown much interest in reining in Trump's exercise of power on any issue.

And Brett Kavanaugh was obviously appointed precisely because of his expressed expansive views of presidential power. But the argument that Trump will have an easy victory in the Supreme Court is not based solely on the Court's personalities - it is also based on the theory that the Court's 2018 decision in the Muslim Ban case (Trump v. Hawaii) is a precedent for the "national emergency" litigation.

This argument is forcefully put forth by University of Chicago law professor Aziz Huq, who is anything but a Trump supporter and who vigorously opposes the "national emergency" declaration, but who seems resigned to its being upheld in the High Court, according to his February 19 POLITICO article:

Has the Supreme Court Already Decided the Wall Case?


Huq's argument that Trump is likely to prevail is based on two grounds, The first is that in both situations, Trump is acting according to a "very broad delegation in a federal statute".

About this, there can be no doubt. Huq's second argument, which is related to but separate from his first, is that there is a long standing principle of deference to the president in immigration matters. based on a "fundamental sovereign attribute", to quote from the Muslim Ban decision.

Indeed Huq, not without a certain tone of mockery, if not resignation, describes this theory by the Latin phrase: rex non potest peccare("the king can do no wrong"). Indeed, one might argue that this phrase has been the foundation of Trump's view of his entire presidency, including, without any possible doubt, immigration.

Huq concludes, pessimistically:

"Under this doctrine, the fact that the president's aim of circumventing Congress' control of appropriations is arguably unconstitutional matters no more than the president's expressions of animus mattered in the travel ban case."

Certainly, it is hard to disagree with Huq's above comments. But is this the whole story? Is the "national emergency" nothing more than a replay of the Muslim ban, with Trump being granted the powers of a king in each case?

There is good reason to believe that this is not the whole story. There are three important difference between the two cases which, hopefully, Chief Justice Roberts, if not the other four "Trump" and "Bush" Justices might be willing to take into account.

The first is that, in the Muslim Ban case, the majority went into great detail to see if there was any justification for Trump's pretext that he was acting based in "national security". Since this pretext has been put together artfully and with considerable by Trump's advisers, the Court has some excuse for not looking at the reality behind the elaborate "national security" facade which was used ot conceal the obvious religious bigotry behind the Muslim Ban executive order.

No such "national security" facade exists in the Wall case.

The second point, is that in the Muslim ban case, even though Trump certainly went around Congress, he did not openly defy Congress. In the Wall case, Trump is openly defying Congress's express refusal to provide funding for the Wall.

This raises a question which goes to the heart of America's democracy.

The third difference between the Muslim Ban and the Wall issues is that in the Muslim Ban case, most of Trumps vicious attacks on Muslim's and the Muslim religion had been made while he was a candidate, so there was an argument that his expressions of open hatred should be ignored as merely "political" speech.

No such argument can be made in the Wall case, in view if the fact that Trump has hardly let a single week go by as president in the past two years without vilifying and demonizing, not only Latin American, but all non-white immigrants in every possible way, both in speech and as a matter of policy.

I will discuss both these issues further in my next comment on this topic.

Roger Algase
Attorney at Law