As a candidate for president in 2015, Donald Trump called for a “total and complete shutdown” of the nation’s borders to Muslims.
Two years later, President Trump signed an executive order enacting a ban on visitors from a series of Muslim-majority countries. Opponents sued, citing those statements as evidence that the ban was little more than a pretext for discrimination in violation of the Constitution.
Fast forward to Friday, when Trump declared a national emergency at the U.S. border with Mexico. The maneuver enables the White House to build a wall that Congress had just refused to fund in full. Candidate Trump promised his supporters a wall, which is likely to be a cornerstone of his campaign for reelection in 2020.
In support of its argument, the White House said the declaration marks a step “to stop crime and drugs from flooding into our nation.”
Yet in the Rose Garden on Friday, Trump himself seemed to undermine his own argument. “I didn’t need to do this,” he told reporters. “But I’d rather do it much faster.”
Late Friday, both the governor of California and the American Civil Liberties Union said they would sue the administration to overturn the emergency. Both are likely to point to the president’s words as evidence that the arguments propounded in support of the emergency have nothing to do with facts. Data compiled by the Department of Homeland Security show no evidence of a flood of illegal crossings at the border.
Trump predicted that the declaration would be challenged in court. And that the administration could expect “a fair shake” at the Supreme Court, where conservatives, two of whom Trump appointed, constitute a majority.
There has been little litigation over the 1976 statute that the administration cited in support of its declaration.
The reality – as the president himself suggested by his statements – appears to be that he needs to show supporters between now and November 2020 that he upheld his promise to build a wall. Now Trump’s words are the words of a president. The Rose Garden is not the campaign trail.
In a 5-4 decision last year upholding the travel ban, the majority looked away from the statements by candidate Trump. “[T]he issue before us is not whether to denounce the statements,” Chief Justice John G. Roberts Jr. wrote. “It is instead the significance of those statements in reviewing a presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.”
Justice Sonia Sotomayor said the majority had ignored the facts. Its decision, she wrote, “leaves undisturbed a policy first advertised openly and unequivocally as a ‘total and complete’ shutdown of Muslims entering the United States’ because the policy now masquerades behind a façade of national-security concerns.”