Trump emergency declaration faces fights in the courts

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.

Related: President Trump visits border wall prototypes amid protests 

22 PHOTOS
President Trump visits border wall prototypes amid protests
See Gallery
President Trump visits border wall prototypes amid protests
US President Donald Trump is shown border wall prototypes in San Diego, California on March 13, 2018. / AFP PHOTO / MANDEL NGAN (Photo credit should read MANDEL NGAN/AFP/Getty Images)
People hold signs during a protest while standing in front of the current border fence and near the prototypes of U.S. President Donald Trump's border wall, in Tijuana, Mexico March 13, 2018. The sign on the right reads "Trump, walls can be jumped over". REUTERS/Edgard Garrido
US President Donald Trump inspects border wall prototypes in San Diego, California on March 13, 2018. / AFP PHOTO / MANDEL NGAN (Photo credit should read MANDEL NGAN/AFP/Getty Images)
People attach a sign reading "Trump, stop the mass deportations" to the current border fence and near the prototypes of U.S. President Donald Trump's border wall, during a protest in Tijuana, Mexico March 13, 2018. REUTERS/Edgard Garrido
US President Donald Trump's motorcade arrives at the border fence in San Diego, California on March 13, 2018. / AFP PHOTO / MANDEL NGAN (Photo credit should read MANDEL NGAN/AFP/Getty Images)
People hold signs reading "No to the wall" and "Trump, put your wall, but in your territory, not in ours", during a protest near the prototypes of U.S. President Donald Trump's border wall, seen behind the current border fence, in Tijuana, Mexico March 13, 2018. REUTERS/Edgard Garrido
US President Donald Trump is shown border wall prototypes with White House Chief of Staff John Kelly (L) in San Diego, California on March 13, 2018. / AFP PHOTO / MANDEL NGAN (Photo credit should read MANDEL NGAN/AFP/Getty Images)
A man holds a sign reading "Trump, put your wall, but in your territory, not in ours", during a protest near the prototypes of U.S. President Donald Trump's border wall, seen behind the current border fence, in Tijuana, Mexico March 13, 2018. REUTERS/Edgard Garrido
US President Donald Trump arrives to inspect border wall prototypes in San Diego, California on March 13, 2018. / AFP PHOTO / MANDEL NGAN (Photo credit should read MANDEL NGAN/AFP/Getty Images)
People hold signs reading "No to the wall, Trump," and "Trump, we are not enemies of the USA" during a protest near the prototypes of U.S. President Donald Trump's border wall, seen behind the current border fence, in Tijuana, Mexico March 13, 2018. REUTERS/Edgard Garrido
US President Donald Trump speaks during an inspection of border wall prototypes in San Diego, California on March 13, 2018. Donald Trump -- making his first trip to California as president -- warned there would be 'bedlam' without the controversial wall he wants to build on the border with Mexico, as he inspected several prototype barriers. The trip to the 'Golden State' -- the most populous in the country and a Democratic stronghold -- was largely upstaged by his own announcement that he had sacked Secretary of State Rex Tillerson. / AFP PHOTO / MANDEL NGAN (Photo credit should read MANDEL NGAN/AFP/Getty Images)
Mexican Federal Police officers stand guard the Mexican side of the Mexico-US border in Tijuana, Baja California state, from where prototypes of the border wall, which US President Donald Trump will inspect on the outskirts of San Diego, in the US, are visible on March 13, 2018. Fresh off a cabinet reshuffle, President Donald Trump was headed for Democratic stronghold California on Tuesday to inspect prototypes of the controversial border wall with Mexico that was the centerpiece of his White House campaign. / AFP PHOTO / GUILLERMO ARIAS (Photo credit should read GUILLERMO ARIAS/AFP/Getty Images)
People hold signs reading "Trump, we will not pay for the wall" and "Trump, stop the mass deportations" near the border fence between Mexico and the U.S., in Tijuana, Mexico March 13, 2018. REUTERS/Edgard Garrido
Journalists gather at a rooftop near the US -Mexico border as President Trump is expected to inspect the border wall prototypes built outskirts San Diego, in Tijuana, Baja California State, Mexico, on March 13, 2018. Fresh off a cabinet reshuffle, President Donald Trump was headed for Democratic stronghold California on Tuesday to inspect prototypes of the controversial border wall with Mexico that was the centerpiece of his White House campaign. / AFP PHOTO / GUILLERMO ARIAS (Photo credit should read GUILLERMO ARIAS/AFP/Getty Images)
U.S. police officers use a ladder to climb up a truck parked in front of the prototypes of U.S. President Donald Trump's border wall, on the U.S. side of the current border fence, in Tijuana, Mexico March 13, 2018. REUTERS/Jorge Duenes
An agent faces Mexico while standing by the vehicle of U.S. President Donald Trump at the border near San Diego, California, where Trump reviewed wall prototypes designed to serve as a protective barrier against illegal immigrants, drugs and smuggled weapons, March 13, 2018. REUTERS/Kevin Lamarque
A U.S. Customs and Border Protection (CBP) Border Patrol Agent sits on horseback near U.S. President Donald Trump's motorcade during a tour of U.S.-Mexico border wall prototypes near the Otay Mesa Port of Entry in San Diego, California. U.S., March 13, 2018. REUTERS/Kevin Lamarque
TIJUANA, MEXICO - MARCH 13:Anti-Trump protestors demonstrate on the Mexico side of the border before the arrival of the U.S. President to inspect the prototypes of the proposed border wall on March 13, 2018 in Tijuana, Mexico. (Photo by Wally Skalij/Los Angeles Times via Getty Images)
The motorcade carrying US President Donald Trump drives past a US-Mexico border fence as Trump head for an inspection of border wall prototypes in San Diego, California on March 13, 2018. Donald Trump -- making his first trip to California as president -- warned there would be 'bedlam' without the controversial wall he wants to build on the border with Mexico, as he inspected several prototype barriers. The trip to the 'Golden State' -- the most populous in the country and a Democratic stronghold -- was largely upstaged by his own announcement that he had sacked Secretary of State Rex Tillerson. / AFP PHOTO / MANDEL NGAN (Photo credit should read MANDEL NGAN/AFP/Getty Images)
Mounted Border Patrol agents are seen as US President Donald Trump inspects border wall prototypes in San Diego, California on March 13, 2018. Donald Trump -- making his first trip to California as president -- warned there would be 'bedlam' without the controversial wall he wants to build on the border with Mexico, as he inspected several prototype barriers. The trip to the 'Golden State' -- the most populous in the country and a Democratic stronghold -- was largely upstaged by his own announcement that he had sacked Secretary of State Rex Tillerson. / AFP PHOTO / MANDEL NGAN (Photo credit should read MANDEL NGAN/AFP/Getty Images)
US President Donald Trump inspects border wall prototypes in San Diego, California on March 13, 2018. Donald Trump -- making his first trip to California as president -- warned there would be 'bedlam' without the controversial wall he wants to build on the border with Mexico, as he inspected several prototype barriers. The trip to the 'Golden State' -- the most populous in the country and a Democratic stronghold -- was largely upstaged by his own announcement that he had sacked Secretary of State Rex Tillerson. / AFP PHOTO / MANDEL NGAN (Photo credit should read MANDEL NGAN/AFP/Getty Images)
US President Donald Trump holds up a poster of before and after photos of a segment of the border wall prototypes with Chief Patrol Agent Rodney S. Scott (R) in San Diego, California on March 13, 2018. / AFP PHOTO / MANDEL NGAN (Photo credit should read MANDEL NGAN/AFP/Getty Images)
HIDE CAPTION
SHOW CAPTION
of
SEE ALL
BACK TO SLIDE

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."

Read Full Story

Sign up for Breaking News by AOL to get the latest breaking news alerts and updates delivered straight to your inbox.

Subscribe to our other newsletters

Emails may offer personalized content or ads. Learn more. You may unsubscribe any time.