President Trump on Thursday ended the two-month congressional struggle over a Mexico border wall, but his effort to bypass lawmakers with a national emergency declaration brings the battle to federal court.
Democrats, environmentalists, and property owners will face the Trump administration in courtrooms across the country, arguing Trump’s redirection of funds without legislative authorization is unlawful.
Trump and White House officials braced for the onslaught. Trump openly remarked in January, “I’ll be sued and it will be brought to the 9th Circuit … and we will probably lose there.”
But faced with a legal fight or another government shutdown, Trump, who had expressed confidence in winning at the Supreme Court, agreed to sign legislation with $1.375 billion for 55 miles of fencing in Texas, while declaring an emergency to redirect other funds for his wall.
“We are very prepared, but there shouldn’t be [legal challenges],” White House press secretary Sarah Sanders told reporters in a crowded West Wing hallway after Trump made the decision. “The president is doing his job, Congress should do theirs.”
With certain exceptions, such as an emergency declaration, presidents must only spend money allocated by Congress. But questions remain about what constitutes an emergency and what harm it could cause someone that would entitle them to sue.
Standing, or the right to sue, has doomed other cases where lawmakers took on a president. For example, members of Congress sued then-President Barack Obama in 2011 over his military campaign in Libya, but a judge threw out the case, pointing out they could vote to stop the president.
Indeed, House Democrats can pass a resolution to block Trump under the 1976 law allowing for emergency declarations. The GOP-led Senate would be required to take up the resolution, and it is likely to pass with a simple majority thanks to some GOP opposition. But Trump’s veto would prevail.
George Washington University law professor Jonathan Turley, who represented lawmakers opposed to the Libya war, said even if standing is established, a decision on the merits probably would favor Trump.
“The existing precedent favors the president. People are fooling themselves,” Turley said. “The courts are unlikely to take the unprecedented step of striking down an emergency declaration when Congress reserved the right to do that directly. … I think the president has unassailable authority to declare a national emergency.”
Turley said judges are likely to deem the threshold for an emergency a “political question” and withhold judgment.
House Republicans represented by Turley successfully sued Obama for implementing Obamacare with funds Congress didn’t approve. But, Turley said, with an emergency, relevant funds already are appropriated by Congress, just without sufficient restriction. In the Obamacare case, Republicans won because Obama took funds directly from the Treasury, he said.
Although a ruling on the declaration could take mere months under expedited review, actual wall construction could be stalled further by property litigation. In the early 2000s, efforts to fence the U.S. border with Mexico resulted in more than a decade of eminent domain challenges.
Presidents have declared 58 other emergencies — for reasons ranging from swine flu to countering “blood diamonds” — but none of the declarations attracted much controversy. Although supported by most Republican lawmakers, Trump took heat from other conservatives.
“This [move] will forever destroy precedent for what constitutes an ’emergency’ under executive authority,” warned Mackenzie Eaglen, a fellow at the American Enterprise Institute. “This abuse and broadening of the interpretation means that there is no limit to what any president can now use as cover to pilfer funds from other priorities and skirt congressional checks and balances.”
Indeed, House Speaker Nancy Pelosi, D-Calif., warned that Republicans may rue the decision.
“The epidemic of gun violence in America — that’s a national emergency,” she said. “Declare that an emergency, Mr. President, I wish you would. But a Democratic president can do that.”
