Cody Fenwick writes that the government funding deal that was just signed by Donald Trump was much worse for him that what the media are generally reporting, though even they concede that it was pretty bad for him. What is telling is that the deal requires the government to treat detainees with basic decency, such as not putting them in wire enclosed cages that were so cold that the detained children called them ‘ice boxes’ and even the sandwiches they were given were frozen.
As Fenwick writes:
And even as Trump’s “wins” are pretty paltry, Democrats secured real achievements in the bill to mitigate some of the worst aspects of the administration’s immigration policy.
PBS Newshour documented how Democrats secured three major concessions: more alternatives to immigration detention, more help (legal and otherwise) from immigrant families who are detained, and a direct rebuke to some of the CBP’s worst practices.
Reporter Lisa Desjardins noted that it was “extraordinary” that the appropriations bill, for example, contained language calling for immigration detention facilities to maintain adequate temperatures — a clear denunciation of the reports that immigrants were kept in freezing rooms — and that the facilities avoid the use of “chain-link type enclosures” — which refers to the infamous cages that children were shown to be kept in under Trump’s policies.
“This is unusual congressional-speak to say they’ve gone too far, and they need to improve their treatment of people,” said Desjardins.
There are other signs that the bill is a major blow to Trump’s agenda — in particular, the fact that so many of his anti-immigrant allies are infuriated by the legislation.
One reason they’re mad is that, even though the bill provides some funding for border barriers (not a concrete wall), it gives local communities input over this construction — essentially allowing them to veto anything they don’t like. And since border communities generally vote Democratic and largely hate the idea of a wall, they may oppose much of this construction altogether. So it’s not even clear if all or most of the 55 miles of new border barriers will, in fact, be permitted.
Meanwhile, another provision says that the Department of Homeland Security will not be able to remove or detain anyone who is a “sponsor, potential sponsor, or member of a household of a sponsor or potential sponsor of an unaccompanied alien child.” This will provide substantial protection for families to be able to stay together, a rightful remedy to the cruel family separations that Trump administration has inflicted on an untold number of children. Critics of this provision argue that it provides a large loophole for undocumented immigrants to stay in the United States, but it’s far from clear to what extent this would really be a problem — while family separations represent a clear and ongoing human rights abuse.
Trump has gone ahead and declared his national emergency. It is clear that Trump did so because he had to save face after his second humiliating comedown in less than a month. Declaring a national emergency is also the kind of dramatic gesture that appeals to him. I did not listen but Trump’s speech today announcing his emergency declaration was apparently a marvel of rambling incoherence even by Trumpian standards. Kevin Drum has a roundup of the appalled and incredulous reactions on Twitter. Perhaps most bizarre was Trump saying that he didn’t really need to declare a national emergency even as he declared a national emergency, “I can do the wall over a longer period of time. I didn’t need to do this. I would rather do it much faster. I don’t have to do it for the election. I have already done a lot of wall for the election 2020.”
Chris Edelson examines the political and legal options that now come into play that can seek to limit or reverse his action.
The U.S. Constitution says nothing specific about presidential emergency power: Presidents can only claim such authority is implied or inherent.
The emergency powers the Constitution does describe are actually assigned to Congress. Congress has delegated some emergency powers to the president through statutes, including the National Emergencies Act. But Congress retains the power to reject a president’s declaration of a national emergency.
The National Emergencies Act permits the president to declare a national emergency without congressional approval, triggering specific statutory powers that the president can use. For instance, presidents have used this law to impose economic sanctions against terrorists after 9/11 or regulate foreign ships in U.S. waters. Thirty-one emergency declarations are currently in effect under the statute.
Congress can vote at any time to terminate a state of emergency, and is required by the statute to meet every six months while an emergency is in effect to consider whether it should continue. However, it has never voted on an emergency declared by a president or held meetings as required by the statute.
Perhaps most importantly for Trump, the National Emergencies Act provides no criteria for deciding whether a national emergency exists. We know from history that presidents can contrive emergencies as a pretext for action.
Since Republicans are not likely to support an override of a presidential veto of a law blocking the emergency declaration (assuming that enough Republican senators join with Democrats to pass one in the first place), it is really up to the courts and they are likely to say that this is a political matter to be decided between Congress and the president.