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Trump just plunged the country into dangerous new territory. Here’s what’s really at stake.

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15.02.2019

Moments ago, President Trump declared that the situation at the southern border constitutes a national emergency. He announced he will sign a declaration to this effect, invoking the power to appropriate funds not authorized by Congress to build his wall.

Trump told all kinds of lies about how drugs come into the country, dismissing the idea that they mostly come through ports of entry (which they do) and claiming a wall will stop them (which it won’t).

“We have an invasion of drugs, an invasion of gangs, an invasion of people, and it’s unacceptable,” Trump said. In so doing, Trump made a claim that is subject to examination: That those things constitute a national emergency, justifying his appropriation of extraordinary powers to address it.

What’s at stake in this battle is a simple dilemma: Can the president declare a national emergency, and appropriate all the powers that this confers on him, when there isn’t any national emergency?

“That is the fundamental question,” Elizabeth Goitein, who has extensively researched national security law for the Brennan Center for Justice, told me.

Or, to put the question somewhat differently: Can the president declare a national emergency, no matter what the actual facts on the ground show? Is there any point at which presidential bad faith matters?

The basic problem we face right now in this regard was created by Congress. The post-Watergate National Emergencies Act, or NEA, places various constraints on the powers the president has when he declares a national emergency. For instance, it requires the president to say which other statute he is relying on to exercise the particular authority he plans to employ under his declared emergency.

The NEA also creates a........

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