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Trump Declaration Faces Court Fight 02/16 10:41
President Donald Trump declared a national emergency along the southern
border and predicted his administration would end up defending it all the way
to the Supreme Court.
WASHINGTON (AP) -- Let the lawsuits begin.
President Donald Trump declared a national emergency along the southern
border and predicted his administration would end up defending it all the way
to the Supreme Court.
That might have been the only thing Trump said Friday that produced
near-universal agreement.
The American Civil Liberties Union announced its intention to sue less than
an hour after the White House released the text of Trump's declaration that 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."
Nonprofit watchdog group Public Citizen filed suit later, urging the U.S.
District Court for the District of Columbia to "bar Trump and the U.S.
Department of Defense from using the declaration and funds appropriated for
other purposes to build a border wall."
House Speaker Nancy Pelosi and several Democratic state attorneys general
already have said they might go to court.
The coming legal fight seems likely to hinge on two main issues: Can the
president declare a national emergency to build a border wall in the face of
Congress' refusal to give him all the money he wanted and, under the federal
law Trump invoked in his declaration, can the Defense Department take money
from some congressionally approved military construction projects to pay for
wall construction?
The Pentagon has so far not said which projects might be affected.
But after weeks of publicly ruminating whether to act, Trump's signature on
the declaration set in motion a quick march to the courthouse.
Trump relied on the National Emergencies Act of 1976, which Congress adopted
as a way to put some limits on presidential use of national emergencies. The
act requires a president to notify Congress publicly of the national emergency
and to report every six months. The law also says the president must renew the
emergency every year, simply by notifying Congress. The House and Senate also
can revoke a declaration by majority vote, though it would take a two-thirds
vote by each house to override an expected presidential veto.
Beyond that, though, the law doesn't say what constitutes a national
emergency or impose any other limits on the president.
The broad grant of discretion to the president could make it hard to
persuade courts to rule that Trump exceeded his authority in declaring a border
emergency. "He's the one who gets to make the call. We can't second-guess it,"
said John Eastman, a professor of constitutional law at the Chapman University
School of Law.
Courts often are reluctant to look beyond the justifications the president
included in his proclamation, Ohio State University law professor Peter Shane
said on a call organized by the liberal American Constitution Society.
But other legal experts said the facts are powerfully arrayed against the
president. They include government statistics showing a decades-long decline in
illegal border crossings as well as Trump's rejection of a deal last year that
would have provided more than the nearly $1.4 billion he got for border
security in the budget agreement he signed Thursday. Opponents of the
declaration also are certain to use Trump's own words at his Rose Garden news
conference Friday to argue that there is no emergency on the border.
"I could do the wall over a longer period of time," Trump said. "I didn't
need to do this, but I'd rather do it much faster."
Republican Rep. Justin Amash of Michigan said Congress made a conscious
choice not to give Trump what he wanted. "A prerequisite for declaring an
emergency is that the situation requires immediate action and Congress does not
have an opportunity to act," Amash said on Twitter.
ACLU executive director Anthony Romero said Trump's remarks are an admission
that there is no national emergency. "He just grew impatient and frustrated
with Congress," Romero said in a statement that also said the rights group
would file a lawsuit next week.
Trying to turn the president's words against him failed in the challenge to
Trump's ban on travel to the United States by citizens of several mostly Muslim
countries. The ban's opponents argued that Trump's comments as a candidate and
as president showed the ban was motivated by anti-Muslim bias, not concern
about national security. Lower courts struck down the ban, but the Supreme
Court upheld it in a 5-4 vote last year.
Trump said he expected to lose in lower courts that he claims have been
unfair to him, particularly if lawsuits are filed in California. "Hopefully,
we'll get a fair shake and we'll win in the Supreme Court, just like the ban,"
he said.
Beyond the challenge to Trump's authority to declare an emergency, lawsuits
also are expected to focus on the military construction project law that allows
the re-allocation of money in a national emergency.
Eastman said he doubts that the Supreme Court would try to interfere with
Trump's decision to send the military to the border and then authorize the use
of money from other Defense Department construction projects to build miles of
a border wall. "The president is authorized to make those judgments, not some
judge in San Francisco," Eastman said.
But the ACLU's suit will argue that Congress allowed for flexibility in
using money it appropriated for projects needed to support the emergency use of
the military forces, like overseas military airfields in wartime.
Several legal experts said claims that the building of the wall is not the
kind of project contemplated in the military construction law could be more
difficult to rebut because border security is more like a law enforcement issue
than a military emergency.
But Shane, the Ohio State professor, said, "It's hard to know how exactly
this is going to unfold politically or judicially."
(KA)
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