On Monday, Feb 25., the Yale Law School’s Rule of Law Clinic worked on behalf of 60 former U.S. government officials to help research and draft a declaration that the officials filed challenging the validity of President Donald Trump’s Feb. 15 declaration of a national emergency at the southern border.
In response to Trump’s declaration, the bipartisan contingent of national security officials with expertise in areas such as immigration and counterterrorism issued their own declaration. Among the declaration’s proponents are former Secretaries of State Madeleine K. Albright and John Kerry ’66 as well as former CIA Directors John O’Brennan, John E. McLaughlin and Leon E. Panetta. The declaration has several signers who were also involved in the 2017 ROLC statement against Trump’s order banning immigration from some majority-Muslim countries.
The Trump administration was preparing the release of its national emergency declaration for several weeks, something that Wajdi Mallat LAW ’20, who works at the ROLC, described as “the ultimate example of how [this situation] doesn’t seem to be a national emergency.”
“The possibility of what the president’s declaration would look like was on people’s radar, so luckily everyone outside of the administration had time to think about it,” said Alexa Andaya LAW ’20, a participant at the ROLC. “When it did finally happen, mobilization was pretty fast, and when you have that amount of time to check over the issues in your head, you have the time to see all the things wrong with it.”
In the declaration, the officials took issue with the president’s declaration of national emergency in four ways.
“The President’s assertion of a national emergency here is unprecedented, in that he seeks to address a situation: (1) that has been enduring, rather than one that has arisen suddenly; (2) that in fact has improved over time rather than deteriorated; (3) by reprogramming billions of dollars in funds in the face of clear congressional intent to the contrary; and (4) with assertions that are rebutted not just by the public record, but by his agencies’ own official data, documents, and statements,” the officials wrote.
The declaration notes that the number of illegal border crossings is in decline, decreasing from 851,000 illegal border crossings in 2006 to 62,000 in 2016 according to Trump administration data. The officials emphasize that though immigration is a pressing issue, a border wall will prove ineffective due to the fact that most undocumented immigrants in the United States have in fact overstayed the time allotted by their visas. The declaration also denies the president’s assertion that terrorism, violent crime and human or drug trafficking constitute a national security emergency at the southern border.
This declaration factors into several ongoing lawsuits that challenge Trump’s efforts to build a wall along the southern border, Andaya said.
“[The declaration] plays a major role in the lawsuits going [on], some from landowners, some from environmental [groups], some from states, [where] the parties are very focused on the specific problems,” she said. “Any lawsuit related to this can cite that to the extent that it helps their case.”
Considering this declaration and numerous similar assertions and evidence, the House of Representatives passed a resolution to overturn Trump’s declaration by a vote of 245 to 182 on Tuesday.
Mallat said that in the coming weeks, the House’s resolution of disapproval will go before the Senate.
“But a number of Republican senators are hesitant, so it may end up on the president’s desk,” Mallat said.
The Senate needs 51 votes for the disapproval measure to pass.
Samuel Turner | samuel.turner@yale.edu
Correction, March 4: A previous version of this story incorrectly implied that the ROLC played a leading role in challenging President Donald Trump’s declaration of a national emergency at the southern border. In fact, the ROLC helped former U.S. government officials research and draft the declaration challenging the national emergency.