DECLARING A NATIONAL EMERGENCY CONCERNING THE SOUTHERN BORDER OF THE UNITED STATESWelcome to the real world.
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BY THE PRESIDENT OF THE UNITED STATES OF AMERICA
A PROCLAMATION
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.
NOW, THEREFORE, I, DONALD J. TRUMP, by the authority vested in me by the Constitution and the laws of the United States of America, including sections 201 and 301 of the National Emergencies Act (50 U.S.C. 1601 et seq.), hereby declare that a national emergency exists at the southern border of the United States, and that 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, according to its terms, to the Secretary of Defense and, at the discretion of the Secretary of Defense, to the Secretaries of the military departments. I hereby direct as follows:
Section 1. The Secretary of Defense, or the Secretary of each relevant military department, as appropriate and consistent with applicable law, shall order as many units or members of the Ready Reserve to active duty as the Secretary concerned, in the Secretary's discretion, determines to be appropriate to assist and support the activities of the Secretary of Homeland Security at the southern border.
Sec. 2. The Secretary of Defense, the Secretary of the Interior, the Secretary of Homeland Security, and, subject to the discretion of the Secretary of Defense, the Secretaries of the military departments, shall take all appropriate actions, consistent with applicable law, to use or support the use of the authorities herein invoked, including, if necessary, the transfer and acceptance of jurisdiction over border lands.
Sec. 3. This proclamation is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
IN WITNESS WHEREOF, I have hereunto set my hand this fifteenth day of February, in the year of our Lord two thousand nineteen, and of the Independence of the United States of America the two hundred and forty-third.
DONALD J. TRUMP
https://assets.documentcloud.org/doc...l-20190211.pdf
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Case: 18-55474, 02/11/2019, ID: 11184856, DktEntry
"Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), the Secretary of the Department of Homeland Security (“DHS”) has long had the authority “to install additional physical barriers and roads . . . in the vicinity of the United States border . . . .” IIRIRA 102(a).1 The Secretary also “ha[s] the authority to waive all legal requirements” that, in the “Secretary’s sole discretion,” are “necessary to ensure expeditious construction” of those barriers and roads. Id. § 102(c)(1)."Act of 1996"
"The panel held that the plain text of section 102(a) of IIRIRA granted DHS authority to construct the border barrier projects, and that grant of authority was not limited by section 102(b) of IIRIRA. The panel concluded that the district court correctly granted DHS summary judgment on the ultra vires claims.
"...
"The question is whether the fencing requirements and deadlines in section 102(b) establish limits applicable to section 102(a). They do not. Section 102(b)’s provisions for priority projects do not swallow section 102(a)’s independent authorization to build “additional physical
barriers.” Congress’s alternative use of the phrases “[i]n carrying out subsection (a)” and “this section” indicates that section 102(b) applies to some but not all of the construction
authorized by section 102(a). In other words, section 102(a) is most plausibly read as a broad grant of authority to build border infrastructure, while section 102(b) merely denotes certain priority projects Congress intended DHS to complete first. Limits on the priority projects apply to those projects alone, not the wider universe of construction authorized by section 102(a)..."
