Sixteen states have filed a lawsuit
to stop President Trump’s attempt to use an emergency declaration to reprogram
federal money to fund his border wall project. The group of states joining the
lawsuit includes two states located on the Mexico border along with another
three states near the southwestern border.
The complaint was filed in California’s Northern District by
California Attorney General Xavier Becerra accuses Trump of “flagrant disregard
for the separation of powers” by redirecting money appropriated for the states
to the wall construction after Congress rejected the president’s request. In
addition to California, the lawsuit includes Colorado, Connecticut, Delaware,
Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New
Mexico, New York, Oregon, and Virginia. The
states all have Democrat attorneys general and all but one have Democrat governors.
The lawsuit says, “By the President’s own admission, an
emergency declaration is not necessary.” In his speech announcing the emergency
declaration, Trump said, “I could have done the wall over a longer period of
time. I didn’t need to do this.” The lawsuit also notes that the federal
government’s own data show there “is no national emergency at the southern
border that warrants construction of a
The lawsuit also claims that the states would be harmed by
the reprogramming of money that Congress appropriated for law enforcement and anti-drug
efforts. In the case of California and New Mexico, the complaint alleges that
the wall construction would cause “irreparable environmental damage.” These claims
give the states standing to bring suit
against the plan.
The president intends to reprogram $8
billion in federal funds using the emergency declaration. Congress appropriated
$1.375 billion in the Homeland Security funding bill and the president plans to
use $600 million from Treasury Department drug forfeiture funds, $2.5 billion from
a Department of Defense counter-narcotic fund, and $3.6 billion from the
military construction budget.
While Donald Trump is not the first president to declare an
emergency, he is the first to do so specifically because Congress refused his
request to appropriate money. When asked by Chris Wallace on Fox
News Sunday if he could point to a single case “where the president asked
Congress for money, Congress refused to give him that money, and the president
then evokes national emergency powers to get the money?” Miller could not cite a single example.
Wallace also pointed out that the majority of drugs entering
the country come through ports of entry, not unfenced portions of the border.
Miller agreed, “Which is the reason why we also ask for additional resources at
the ports of entry.”
“But this is what you got,” Wallace answered, noting
correctly that the funding agreement passed earlier this month included $615
million for new equipment at ports of entry.
Writing for National
Review, David French pointed out that the Trump Administration is forced to
twist the law in order to use the military construction money for the border
wall. The stipulations for reprogramming this money in an emergency are that
the crisis “requires use of the armed
forces” and that the construction is “necessary
to support such use of the armed forces.” The border situation, a civilian law
enforcement problem, fails the test on both counts. Under the Posse Comitatus
Act, the military is prohibited from engaging in domestic law enforcement.
The lawsuit against President Trump recalls a similar
lawsuit brought against Barack Obama by House Republicans. Under John Boehner,
the GOP sued Obama for spending money on Obamacare subsidies without the money
having been appropriated by the House. Federal District Judge Rosemary
Collyer ruled against President Obama’s executive overreach in 2016,
saying, “Congress is the only source for such an appropriation, and no public
money can be spent without one.”
The recent bipartisan
spending bill limited the construction of new border fencing to specific
areas. It is not clear if the Trump Administration will attempt to use the national
emergency to construct fencing in areas that were not authorized by Congress.
The lawsuit by the states is likely to be only the first in
a series of legal attempts to rein in the Trump Administration’s use of emergency
authority to bypass a stalemated Congress. It is possible that House Democrats
may launch a lawsuit similar to the Republican effort against Obama to protect
the House of Representatives’ constitutional role as the keeper of the
As the legal battle stretches into the election year, the blowback is likely to damage Republican efforts in Congress as well as President Trump’s re-election campaign. Americans are split on the border wall with about 30 percent in favor, but public opinion is strongly against the national emergency. Polls consistently show that two-thirds of voters oppose the use of a national emergency to fund the wall. A long, drawn out, unpopular legal fight for an unpopular project is not a good way to start an election cycle.
Worse is the fact that the party that claims to represent
constitutionalists is twisting the law to enact a policy against both the rule
of law and the will of the people. The framers did not intend for presidents to
find ways to subvert Congress when legislators failed to act. They did intend
for elected officials to be responsive to the voters. The fact that President
Trump was elected 2016 does not grant him carte blanche.
President Trump made his case for a border wall to the American
people in both 2016 and 2018 and failed to receive a mandate in either
election. The Democrats hold the House in no small part because voters chose to
rebuke the Trump Administration for its hardline immigration policies. If Mr.
Trump refuses to accept that rebuke, it is likely that voters will deliver
another in 2020.