Last week, when Donald Trump invented a national emergency at our southern border in order to re-appropriate money already allocated by Congress to a quixotic and racist campaign promise he couldn’t keep, he gave a bonkers speech in the Rose Garden that outlined the basis for his action. Set aside for a moment the urgent problem he created for himself—in that speech, he admitted the declaration was purely political:
I could do the wall over a longer period of time. I didn’t need to do this. But I’d rather do it much faster. I don’t have to do it for the election. I’ve already done a lot of wall for the election. 2020. And the only reason we’re up here talking about this is because of the election, which it looks like they’re not going to be able to do. And this is one of the ways they think they can possibly win is by obstruction and a lot of other nonsense. I think that—I just want to get it done faster, that’s all.
The media focused almost exclusively on the speech, which, though it will be material to the coming lawsuits about the constitutionality of that order, isn’t the same argument he makes in the order itself. When you read the actual text, it’s fair to believe even if the courts rule in Trump’s favor, he still won’t get his wall. Two reasons for this.
1. He says the crisis isn’t due to any surge in drugs or violent crime, but the result of his administration’s failure to process families.
2. Any construction can be undertaken only by the Secretary of Defense, and it must support the mission of troops at the border—it’s hard to see how anyone can square this with point (1) above.
Here are all the juicy details.
There is a massive crisis at the Mexico border, but Trump’s own declaration acknowledges that the abysmal situation has basically nothing to do with crime, drugs, or even people crossing into the country illegally. (You can read the full thing for yourself here.) The order focuses, as it should, on the administrative crisis that first manifested itself so sickeningly last summer when border agents began separating children from their families, and which has persisted in the form of a stultifying backlog of asylum-seekers and thousands of lost migrant children, whom the feds have admitted they can’t find.
Apologies for the huge block of text, but we need to read the first paragraph of the order, which is the sole justification for the actions that follow. I’ve emphasized the key phrases so I can reference them in an analysis that follows.
The current situation at the southern border presents a border security and humanitarian crisis that threatens core national security interests and constitutes a national emergency. The southern border is a major entry point for criminals, gang members, and illicit narcotics. The problem of large-scale unlawful migration through the southern border is long-standing, and despite the executive branch’s exercise of existing statutory authorities, the situation has worsened in certain respects in recent years. In particular, recent years have seen sharp increases in the number of family units entering and seeking entry to the United States and an inability to provide detention space for many of these aliens while their removal proceedings are pending. If not detained, such aliens are often released into the country and are often difficult to remove from the United States because they fail to appear for hearings, do not comply with orders of removal, or are otherwise difficult to locate. In response to the directive in my April 4, 2018, memorandum and subsequent requests for support by the Secretary of Homeland Security, the Department of Defense has provided support and resources to the Department of Homeland Security at the southern border. Because of the gravity of the current emergency situation, it is necessary for the Armed Forces to provide additional support to address the crisis.
Let’s take those one by one.
1. The southern border is a major entry point for criminals, gang members, and illicit narcotics. This is the only place the order references crime. One declarative, Hemingway-short sentence. That sentence—along with every other sentence—fails to muster any details, statistics, or other facts that justify the existence of these problems a national emergency. Why? Because it would be indefensible in court.
This next bit is long on facts, but these are facts about drug cartels and trafficking so they’re not only relevant to showing objectively why Trump’s own government thinks he’s a dumb-dumb…but they’re also kinda fun.
Let’s look at “criminals.” (We’ll include the redundant “gang member” scaremongering, because as Trump would have it they’re also “criminals.”) DHS statistics make clear that the number of people “convicted of one or more crimes, whether in the United States or abroad, prior to interdiction by the U.S. Border Patrol” has been nearly cut in half over the last two years (or as Trump’s declaration puts it, “recent years”). In 2016, the total was about 12,000 people. In 2017 and 2018, the total was around 6,000. (Also, in 2017 and 2018 alike CBP detained only three people convicted of homicide. Three. For perspective, in 2018 CBP detained a total of 396,579 people at the southwest border alone, and those statistics about criminal apprehensions account for all undocumented people detained, not specifically those at the southwest border.)
Let’s now turn to “illicit narcotics.” This is fascinating. First, we’ve all heard that the vast majority of drugs seized at the border are trafficked through ports of entry. Per CBP statistics, in the first 11 months of FY 2018, 90 percent of heroin, 88 percent of cocaine, 87 percent of meth, and 80 percent of fentanyl seized at the border were interdicted at legal ports of entry. Gil Kerlikowske, who led both CBP and the Office of National Drug Control Policy under President Barack Obama, told USA Today that CBP intelligence gathered from arrests and from Mexican law enforcement makes clear that smugglers prefer to move drugs through ports of entry, due in large part to the volume of traffic that passes through those choke points. “Regardless of the number of drug dogs and technology and intelligence,” he said, “the potential of smuggling the drugs in through a port of entry is far greater.” He added, “Your ability to be captured coming across between a port of entry is much greater.”
Look at fentanyl. According to the Trump DEA’s most recent National Drug Threat Assessment,, the overwhelming majority of CBP fentanyl seizures happen at ports of entry in Southern California, the majority of it (74 percent, by weight) found in personal vehicles. In 2017, approximately 85 percent of fentanyl seized at the Mexico border—447 out of 524 kilograms—was interdicted at the San Diego port of entry.
What’s more, the DEA concludes “it is currently not possible to determine which source, Mexico or China, is the greater direct threat as a supplier of fentanyl to the United States.” That’s because, according to their threat assessment, fentanyl seized at the Mexico border is less than ten percent pure on average, so “the overall low purity of this fentanyl means a relatively small portion of a given fentanyl seizure is actually fentanyl.” Though the U.S. seizes a smaller amount of the drug from China (via the mail, boats, and the Canadian border), the Chinese product regularly has purities over 90 percent, and “both poses a greater risk to the purchaser/user and can be adulterated many more times.” Further, the DEA reports that Mexican traffickers order fentanyl from China, then adulterate it and smuggle it into the U.S., which means an unknown amount of “Mexican” fentanyl is ultimately from China. Mexican cartels also primarily get their fentanyl precursor chemicals from China, then they process them and push the drug into southern California.
In fact, cartels are so incredibly sophisticated about manufacturing drugs and pushing them through legal ports that the DEA has changed its approach to what some officials refer to as a “”push-out-the-border strategy. Take cocaine, for instance. Most coke still comes from South America (Colombia), but Mexican cartels turn profits as middlemen who push it through the U.S. border. For years cocaine production had declined in Colombia, but thanks in part to the dissolution of FARC and new land management laws, coke is on a comeback. Per the DEA’s most recent National Drug Threat Assessment, a whole lot of that cocaine gets moved by boat: “In 2017, at least 84 percent of the documented cocaine departing South America transited the Eastern Pacific.”
In response the U.S. has shifted cocaine interdiction efforts to sea. Admiral Karl Schultz, the commandant of the Coast Guard, told Business Insider, “when we take down drugs at sea it reduces the violence. It maximizes the impact. When these loads land in Mexico, in Guatemala, Honduras, Panama, they get distributed into very small loads, very hard to detect, and there’s associated violence, corruption, instability. It’s just very hard to govern in that space when there’s that much associated disarray here that surrounds these drugs, so we’re really proud of the ability to push that border out.”
In other words, the U.S. realizes they’ll have more success heading shipments off before they make it to Mexico and cartel-land, and Trump isn’t talking about building a sea-wall.
Let’s move on.
2. The problem of large-scale unlawful migration through the southern border is long-standing, and…the situation has worsened in certain respects in recent years.
Yes, a tale as old as time. But as you’ve probably heard a billion times now, annual border apprehensions peaked in 2000 at about 1.64 million and have dramatically and more or less steadily dropped ever since, for a total of 396,579 apprehensions in 2018. So that “long-standing” bit is an argument against itself. However, the situation has indeed gotten worse “in certain respects in recent years.” Trump’s own declaration makes it clear, though, those “certain respects” aren’t crime-related, but are related to the acute rise in families seeking asylum.
3. In particular, recent years have seen sharp increases in the number of family units entering and seeking entry to the United States and an inability to provide detention space for many of these aliens while their removal proceedings are pending.
This is the heinous problem we’ve read about since late last spring. As Trump’s own language here makes quite clear—”sharp increases in the number of family units”—the administration must admit the real problem at the border has nothing to do with violent criminals, gangs, or drug trafficking. It’s about a spike in asylum-seekers. The dreaded “caravans,” for instance, are people seeking asylum in the United States You can read more about that here, but the upshot is the specific emergency he cites—”inability to provide detention space”—is entirely Trump’s fault. A judge would probably just say, “You can fix this by getting rid of your own policies, which created your problem in the first place.”
A little more specifically:
4. If not detained, such aliens are often released into the country and are often difficult to remove from the United States because they fail to appear for hearings, do not comply with orders of removal, or are otherwise difficult to locate.
This is what Trump calls “catch-and-release.” His own government, of course, belies this claim. DOJ data over the last five years shows that somewhere between 60 and 75 percent of released migrants show up for their hearings. A wall, obviously, will not raise that statistic.
As for those who are “otherwise difficult to locate”—well, I’ll point you once more to the thousands of migrant children the feds have lost over the last year and a half or so. That’s an emergency, no doubt, but once again, Trump’s own policies created it. Trump, however, says the solution to this is not just in appropriating more money to deal with that problem, but in specifically appropriating more money to build a wall (and potentially deploy U.S. troops) to deal with it. Is a wall the most effective solution to processing the real emergency: An overworked and under-resourced administrative body? No.
But it’s not just the courts that will tell Trump he can’t have his wall this way. We might not have to wait that long, because Trump’s own order doesn’t give him the authority.
That’s right: Trump put it all in the hands of the Secretary of Defense. Here’s the relevant text, emphasis mine:
...section 12302 of title 10, United States Code, is invoked and made available, according to its terms, to the Secretaries of the military departments concerned, subject to the direction of the Secretary of Defense in the case of the Secretaries of the Army, Navy, and Air Force. To provide additional authority to the Department of Defense to support the Federal Government’s response to the emergency at the southern border, I hereby declare that this emergency requires use of the Armed Forces and, in accordance with section 301 of the National Emergencies Act (50 U.S.C. 1631), that the construction authority provided in section 2808 of title 10, United States Code, is invoked and made available...
Basically, the Secretary of Defense must determine that he needs some sort of border construction in order to support the mission of the Armed Forces—not to solve a fake emergency. Here’s the relevant text from the Declaration of National Emergency by Executive Order part of the U.S. Code:
In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act (50 U.S.C. 1601 et seq.) that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces.
Trump hasn’t technically had a Secretary of Defense since Gen. James Mattis resigned last December. The acting head, Patrick Shanahan, wasn’t fully briefed before Trump made the declaration, and said last weekend he would receive a full briefing in the coming days. Trump, in other words, declared an emergency to build the wall without the endorsement of the guy who would decide to build any border barrier: “There’ve been no determinations by me, so that’s what I’ll be doing tomorrow,” Shanahan said. “But I just want to make a point of this: we are following the law, using the rules, and we’re not bending the rules.”
The rules say that any construction must support the mission of the troops. This is common sense, because to any sane person when the law was passed in 1976, the military would obviously need to build temporary bases, roads, hospitals, etc, in the event of an emergency that truly required the military. Trump has applied this to a non-combat environment in a fake emergency. On top of that, his own order dictates to Shanahan that the real emergency is about their trouble processing families.
It’s clear that the emergency Trump has described doesn’t require a wall. The military will only build constructions that support its mission at the border, which is bit to help Trump sort out an administrative crisis of his own making. It’s not unlikely the military will build some laughably short stretch of barrier somewhere on the border, but as has been the case all along, the wall is stupid and entirely unnecessary. The good news: a) Trump just argued himself out of it; and b) you’re not alone in seeing it that way.