Trump’s Border Wall ‘Emergency’ Faces First Legal Challenge
(Bloomberg) -- A nonprofit sued to block President Donald Trump from diverting funds from the federal budget to spend about $8 billion on his promised border wall, hours after he declared a national emergency.
Public Citizen, a consumer rights think tank, filed the complaint Friday evening on behalf of a nature preserve and three landowners in southern Texas who’ve been told the government will seek to build sections of the wall on their property once funding becomes available.
The case was the first among many expected legal challenges to the president’s authority to circumvent Congress as he seeks to fulfill a campaign promise to build a barricade along the U.S. border with Mexico. State attorneys general in California, Nevada, New Mexico, New York and elsewhere are poised to bring more suits. Congress is considering taking its own action against the president.
Public Citizen claims Trump violated the Constitution’s separation-of-powers doctrine when he invoked the National Emergencies Act, sidestepping the decision by Congress not to authorize more than $1.35 billion for the wall. Trump signed the declaration Friday after approving legislation to fund the government and avoid yet another shutdown.
Trump’s gambit combines an emergency declaration with ordinary executive actions. He plans to redirect $3.5 billion Congress approved for the Defense Department’s military construction budget and reprogram $2.5 billion from the military drug interdiction efforts and $600 million from the Treasury Department’s drug forfeiture program, a senior administration official said on Thursday.
Public Citizen alleges that Trump’s declaration isn’t a response to an emergency, but instead reflects a “long-running disagreement” between the president and Congress about whether to build a wall.
Such a disagreement “does not constitute an emergency authorizing unilateral executive action,” according to the complaint filed in Washington federal court. ”The invocation of emergency powers and exercise of those powers, and the diversion of funds to build a wall, are thus contrary to law.”
In unscripted remarks Friday morning, Trump depicted the emergency declaration as ordinary but also said he expected it to be challenged in court. He predicted he’d eventually prevail, but conceded: “I didn’t need to do this. I just want to get it done faster,” he said of the wall.
Now those comments may be used against him in court.
“Words have meaning,” said Allison Zieve, a lawyer for Public Citizen. “The facts make clear that the premise of the president’s declaration -- that the absence of a wall in the areas where construction is planned is an ‘emergency’ -- is legally untenable and an impermissible basis for seeking to obligate funds that Congress has refused to appropriate for a border wall.”
One challenge for Public Citizen could be the funding Congress did give the president to build steel fencing along the border. Trump’s emergency funds may not be drawn until existing allocations have been spent, which means it may be weeks or months until the consumer group can show that anyone has been harmed by the president’s actions.
Meanwhile, Nayda Alvarez, the lead plaintiff in Friday’s case, fears for her home near the Rio Grande Valley. In September, Alvarez received a letter from U.S. Customs and Border Protection seeking access to the property so that federal agents could assess future construction within feet of her house. Her concern is that construction of the wall would cut off several acres of her family’s ancestral property and take away her view of the river.
Another plaintiff, the Frontera Audubon Society in Weslaco, Texas, claims the wall would rip through a wildlife corridor, destroying habitats for birds and other animals.
California Governor Gavin Newsom and Attorney General Xavier Becerra said the complaint they plan to file challenging the president’s emergency declaration will mark the 46th time the most populous state has taken the Trump administration to court. Newsom, a newly elected Democrat, said Friday that the President is putting at risk law enforcement programs that combat gang violence, drug sales and human trafficking “for a vanity project.”
”The wall will do nothing to impact drugs coming over our border.”
The case is Alvarez v. Trump, 1:19-cv-00404, U.S. District Court, District of Columbia (Washington).
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