President Trump’s national emergency declaration was met with a slew of lawsuits in federal court, but litigants face potentially insurmountable obstacles as they take their fight over the border wall to the courts.
“All we have so far is a proclamation. We don’t have anything else,” South Texas College of Law professor Josh Blackman told the Washington Examiner. “We don’t have plans of what’s going to be built, where it’s going to be built, what source of money will be utilized first. Until we know those things, I don’t think any of these suits are ripe.”
The president on Friday declared a national emergency to bypass Congress and divert funds to build the wall along the southern border. The emergency declaration would allow him to use $3.6 billion from the Pentagon’s military construction fund, on top of $1.375 billion appropriated by Congress and $3.1 billion that will be moved administratively, outside the declaration, from other accounts.
The lawsuits, including one filed by a coalition of 16 states, argue Trump’s move was unconstitutional.
The cases could come to a quick demise. An early test for the plaintiffs will be whether they have legal standing to sue. In order to establish standing, the plaintiffs will have to prove they have been harmed by the president’s action or that harm is imminent. That could be a challenge.
“Congress and states will all have trouble establishing standing,” Kim Lane Scheppele, a professor at Princeton University’s Center for Human Values, told the Washington Examiner. “Then even the concrete people who are harmed, like those whose property is seized, courts tend to be deferential to presidential claims. The court is not going to go out and look at the border and put on their binoculars and look for terrorists.”
Scheppele said it is likely the courts will look at the complaint from the 16 states and say nothing in their suit points to money they had previously that they don’t have today.
“As long as its speculative, they can’t claim there’s any harm,” she said.
Additionally, because the White House said the $3.6 billion diverted under Trump’s emergency declaration would be the last pot of cash it pulls from, Scheppele said it’s unclear whether that money will even be used to build the wall.
“Until there’s something specific, no legal challenge can really succeed,” she said. “What you see are all these cases coming out, which are much more fanning the fire of opposition to the wall.”
Another hurdle for those challenging Trump’s emergency declaration is the ripeness of the case, or whether a claim is ready to be adjudicated.
“Until we know exactly what money they’re reallocating at all, I think the case is premature,” Chapman University law professor John Eastman told the Washington Examiner. “And that’s a pretty significant hurdle.”
Blackman agreed the Trump administration can take specific actions to make it “tough for these claims for be ripe,” including by announcing construction of the wall in Texas, which would invalidate environmental claims raised by states like California and New Mexico.
“Usually, the administration has a very convoluted and disorganized strategy for their executive action, but here, I think they’re running the clock in a fairly efficient manner,” he said. “If they sequence this in just the right way, it can be very hard to challenge.”
Trump predicted his emergency declaration would spark legal battles, including in the 9th U.S. Circuit Court of Appeals, which has blocked number of his policies.
“Then we’ll end up in the Supreme Court, and hopefully, we’ll get a fair shake,” he said Friday. “And we’ll win in the Supreme Court, just like the ban.”
Indeed, the president’s emergency declaration could follow the same legal path charted by the president’s travel ban, which restricted travel to the U.S. for foreign nationals from Muslim-majority countries. The Supreme Court upheld the travel ban in June.
“In the area of immigration as in the area of national security, the president has a lot of unspecified powers,” Scheppele said, “and the courts will typically defer to the president’s discretion in exercising those powers when they’re challenged.”
