A banner reading “Finish the Wall” is displayed at a rally for U.S. President Donald Trump in El Paso, Texas, U.S. (Photographer: Adria Malcolm/Bloomberg)

Can Trump's Wall `Emergency' Stand Up in Court?: QuickTake

(Bloomberg) -- President Donald Trump declared a national emergency on Feb. 15 to reallocate about $7 billion for his promised border wall. In the wake of his announcement, there’s been a flurry of lawsuits filed in federal courts from Washington D.C. to California. The primary argument in the suits is that the president circumvented Congress’s constitutionally protected authority to determine how taxpayer money is spent.

1. Who are the plaintiffs?

The list is long. There are five lawsuits: one filed by sixteen states including California; one by the American Civil Liberties Union on behalf of the Sierra Club; the county of El Paso, Texas; the Center for Biological Diversity; and a wildlife refuge along with three landowners along the border. They are all seeking to stop Trump from unilaterally reallocating funds from the federal budget or using military resources to start construction along the border.

2. What are they arguing?

They all claim Trump is acting “ultra vires” -- a Latin phrase that means beyond his legal authority -- and is violating the separation of powers outlined in the U.S. Constitution. They argue that since Congress declined to fund the border wall in 2017 and 2018, Trump may not usurp its power to pursue his own agenda. Article 1 states: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by the Law.” Separately, they could point to the president’s own admission: “I didn’t need to do this. I just wanted to do it faster.” They also allege that Trump improperly invoked the National Emergencies Act which gives the president broad powers during a crisis. “The Mexican army is not trying to infiltrate the United States,” said Michael McConnell, Director of the Constitutional Law Center at Stanford Law School. At least two of the cases lean on the National Environmental Policy Act, alleging the administration has failed to evaluate the environmental impact of a border wall.

3. Why is El Paso suing?

The county is accusing Trump of damaging its reputation, tourism and cross-border manufacturing economy by mischaracterizing the area’s crime rate when he stumped for the wall in January, and then accusing officials of being “full of crap” when they tried to correct him. El Paso is “one of the safest communities in the nation,” where rates of both violent and property crime were falling even before sections of a border wall were built there in the 2000s, the county’s lawyers said in the complaint.

4. What could Trump argue in his defense?

The National Emergencies Act grants special powers to the executive branch during a crisis. It has been used by every president since Jimmy Carter. Prior to Trump’s declaration, the U.S. was already engaged in 31 active national emergencies. For example: In 2001, after 9/11, the Bush administration prohibited transactions with people who’d committed acts of terrorism. The law doesn’t explicitly define what is or is not an emergency.

5. What role could Congress play?

On Feb. 26, the House voted to block Trump’s declaration, sending the measure to the Senate where the GOP majority will be forced to take a stand on whether to defy their president. But the 245-182 vote -- designed to stop Trump from taking billions from other parts of the federal budget to build his promised border wall -- fell far short of the two-thirds majority that would be needed to overturn a promised presidential veto. By law, the Senate will have 18 calendar days to consider the House measure, H.J.Res. 46, or act on its own version. The measure needs a simple majority to be adopted and sent to Trump’s desk, but is also unlikely to attract support from a veto-proof majority in the Republican-controlled chamber.

6. How could the president get his $7 billion?

Congress allocated $1.35 billion toward border security in the latest budget. Trump would have to spend that before he could tap the emergency funds, which could come from the Defense Department. It’s unclear if the president has made efforts to access those funds, but standard procedure would require Trump to consult with the acting Defense Secretary, Patrick Shanahan, who would determine if the wall is a military priority. Once those wheels are in motion, plaintiffs may seek a temporary restraining order to immediately block the president from using any funds to build a wall. Until then, the litigation is in a holding pattern. The first hearing is scheduled for May 21 in the ACLU’s case on behalf of the Sierra Club.

The Reference Shelf

©2019 Bloomberg L.P.