The president’s decision to declare a national emergency along the southern border so that he has the funds to build a wall is already facing legal challenges.
Trump predicted that his administration would end up defending the decision all the way to the Supreme Court, and there seems to be almost universal agreement on that.
The ACLU announced its intention to sue the president less than an hour after the White House pleased the text of the president’s declaration. It said 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.”
But the ACLU was not alone, the nonprofit watchdog group Public Citizen later filed suit, 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. California Gov. Gavin Newsom announced he is filing a lawsuit to challenge the declaration. And House Judiciary Committee Chairman Jerry Nadler also announced that his committee will be investigating Mr. Trump’s reasoning for calling the national emergency.
The pending legal battles will most likely 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 Mr. Trump invoked in his declaration, can the Defense Department take money from some congressionally approved military construction projects to pay for wall construction?
President Trump is planning on using $8 billion to build the wall, including the $1.375 billion approved by Congress, with an additional $600 million expected to come from the Treasury Department’s drug forfeiture funds, $2.5 billion coming from the Defense Department’s drug interdiction program, and an additional $3.5 billion coming from the Pentagon’s military construction budget.
The president is resting this plan on the National Emergencies Act of 1975, which Congress adopted as a way to put some limits on presidential use of national emergencies.
The House and Senate can revoke a declaration by majority vote, but it would take a two-thirds vote by each house to override an expected presidential veto.
The law does not say what constitutes a national emergency or impose any other limits on the president.
The discretion given 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.
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