Assuming a 9-11 style “emergency” is what the statute is also contemplating as an “emergency.” Yet, the statute doesn’t define “emergency,” rendering your argument a bit weak.
In addition, declaring a national emergency allows the President access to 123 statutory powers for the President to exercise. In other words, declaring a national emergency gives the President access to vast statutory powers he otherwise lacks statutorily without declaring a national emergency.
So, it could be there was a national emergency but Trump chose not to invoke it, believing other means could perhaps be used to meet the national emergency. In other words, perhaps there’s been a national emergency but Trump didn’t believe previously he needed any of the 123 national emergency statutory powers granted to him to address the national emergency, hence he didn’t declare one previously.
Indeed, if you look into the history of some of those prior 58 declared national emergencies, you’ll quickly realize some of the circumstances of some of those national emergencies had existed for some time before a national emergency was declared.
I have no doubt this will end up in court. I hope the courts render the statutes unconstitutional. But I suspect, given the broad statutory language vesting wife latitude and discretion by Congress to the President, the federal judiciary will invoke the Political Question Doctrine, and punt on the issue.
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