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 wall.”
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 government purse.
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.
Originally published on The Resurgent