Constitution / donald trump / Immigration / Trump Administration

First Lawsuit Challenging President Trump’s Emergency Declaration

On Friday President Trump declared an emergency under the National Emergencies Act in order to fund construction of a border wall.  In a bizarre Rose Garden press conference, President Trump explained “I could do the wall over a longer period of time. I didn’t need to do this, but I’d rather do it much faster.”

Within hours, public interest group Public Citizen filed the first lawsuit in federal court in the District of Columbia challenging President Trump’s declaration of an emergency   The suit is filed on behalf of three landowners in South Texas who were told by the government that it would seek to build a border wall on their properties if money was available in 2019 and the Frontera Audubon Society which claims that a nature preserve would be harmed by border wall construction.

The lawsuit is quick to point out the President’s Rose Garden admission.

In answering a press question about the Declaration, the President conceded that
the situation at the southern border does not require a declaration of national emergency. He stated: “I could do the wall over a longer period of time. I didn’t need to do this, but I’d rather do it much faster.

(Complaint at ¶ 31.)

The complaint stresses that there is “[n]o national emergency . . . with respect to immigration across the southern border of the United States,” as the Department of Homeland Security (DHS) calculated a “91 percent decline” in unlawful border crossings over the period 2000 to 2016.  (Complaint at ¶¶ 37-40.)

The complaint’s First Cause of Action alleges that “the president has no inherent authority to declare emergencies to override appropriations laws and other laws enacted by Congress.”  Since no national emergency exists with respect to immigration across the
southern border, the President’s Declaration “exceeds the limited authority delegated to the President to declare national emergencies and invoke specific statutory powers conferred by Congress.”

The Second Cause of Action attacks the President’s invoking authority provided under 10 U.S.C. § 2808 (granting construction authority in the event of a declaration of war or national emergency).  The complaint again notes the absence of a real national emergency but adds that the planned border wall is not a “military construction project” that is “necessary to support … use of the armed forces” under 10 U.S.C. § 2808(a).

Similarly, the Fourth Cause of Action asserts that since the requirements for invocation of 10 U.S.C. § 2808 are not satisfied, “use of funds appropriated for other purposes usurps
legislative authority conferred by the Constitution on the Congress.”

The Third Cause of Action attacks the transfer of funds under 10 U.S.C. § 284 which permits the Defense Department to transfer funds to other agencies for the “[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.”  The authorization to transfer funds to construct fencing to block drug smuggling, however
does not authorize the use of transferred funds for the construction of the planned border wall.

The complaint requests the court to

  • find that Trump exceeded his constitutional authority and authority under the National Emergencies Act;
  • hold that the emergency declaration violates the doctrine of separation of powers; and
  • bar Trump and the U.S. Department of Defense from using the declaration and funds appropriated for other purposes to build a border wall, the complaint requests.

A copy of the complaint is below.