Skip to content

Legal fight expected for Trump’s national emergency declaration

Experts predict high court will back his power to do so, but maybe not accessing military monies

President Donald Trump speaks to the media before departing on Marine One from the White House on Thursday. (Mark Wilson/Getty Images)
President Donald Trump speaks to the media before departing on Marine One from the White House on Thursday. (Mark Wilson/Getty Images)

President Donald Trump will declare a national emergency at the southern border to redirect military funds to his border wall project after lawmakers gave him $4.3 billion less than his $5.7 billion ask. But the move is expected to bring court fights that could sink his plan. 

A House-Senate conference committee could only agree to give the president just shy of $1.4 billion for the barrier project as conferees struck a deal needed to avert another partial government shutdown. The president — who earlier this week said he couldn’t say he was happy about the contents of the compromise — reluctantly agreed to sign it into law after the Senate and House sign off during floor votes Thursday.

[Why 19 Democrats and 109 Republicans voted against the government funding deal]

The White House confirmed Trump would sign the compromise spending measure — and avert another government shutdown after the recent 35-day one left him politically damaged — but then declare a national emergency.

President Trump will sign the government funding bill, and as he has stated before, he will also take other executive action — including a national emergency — to ensure we stop the national security and humanitarian crisis at the border,” Press Secretary Sarah Huckabee Sanders said in a statement. “The President is once again delivering on his promise to build the wall, protect the border, and secure our great country.”

Lawmakers in both parties who desperately want to keep the government open breathed a sigh of relief at the former. But Democrats will have to hold their noses as most of them vote for the spending measure, knowing the president will subsequently take an action over which they long have threatened legal action.

[Trump’s cryptic ‘funding bill’ tweet momentarily casts doubt over border bill]

Speaker Nancy Pelosi said Thursday afternoon she “may” file a legal challenge to Trump’s national emergency declaration, adding that she didn’t support “any president doing an end-run around Congress.”

In a statement issued after her press conference, Pelosi and Senate Minority Leader Charles E. Schumer  were more explicit in threatening a legal fight. “The Congress will defend our constitutional authorities,” the duo said.

Trump’s top spokeswoman, however, brushed off the threat. “We are very prepared, but there shouldn’t be. The president is doing his job. Congress should do theirs,” Sanders told reporters outside her office Thursday.

Watch: Senate leaders interrupt Grassley speech to announce Trump’s support for deal, national emergency plans

[jwp-video n=”1″]

‘The money will be there’

Democratic and Republican lawmakers in recent days, echoed by legal scholars, had already been predicting that a “national emergency” move would be met by swift legal action. 

Public Citizen, a left-leaning consumer rights advocacy organization, said in a statement Thursday that it would sue Trump if he takes that action.

“If this invocation of emergency on false pretenses is tolerated, it could justify almost limitless abuses of presidential and military power, including far-reaching clampdowns on civil rights,” the group said.

Mark Rom, a Georgetown University professor, said that should the matter get to the U.S. Supreme Court, he wouldn’t expect the justices to “challenge the president’s ability to declare a national emergency.”

“Now, on the question of whether the president’s claim that an emergency allows him to move the money around, it’s anyone’s guess just where the court might come down,” Rom said. “My expectation is this will play out like Trump’s initial travel ban: He will keep tinkering and keep tinkering until the courts decide it’s just within legal boundaries.”

Trump’s power to declare the emergency stems from the 1976 National Emergencies Act, which “makes no attempt to dictate conditions for when this can be done, according to Bobby Chesney, a professor at the University of Texas School of Law. Thus, if Trump wishes to state that the border is in such a state of disarray or exposure that it constitutes a national emergency under the NEA, he is mostly free to do so.

[White House: Wall funds would be ‘back-filled’ in 2020 budget request]

“Trump presumably would assert that the border wall is a military fortification of sorts, and that it is key to supporting the military role in providing border security. And so the argument would turn on whether one accepts the predicate about the military’s role in the first instance,” Chesney said.

“On one hand, it’s obvious that, in some contexts like an armed invasion, border control can be a military matter of the first order,” he said. “On the other hand, that is not the situation we currently face … and not the way we largely have handled the southern border.”

Watch: What is a national emergency? How Congress gave the White House broad, far-reaching powers

[jwp-video n=”2″]

Gordon Adams, who oversaw defense and national security budgeting for the Clinton White House, agreed that Trump has the legal authority to make the declaration. It is not a settled legal matter that four congressional panels — two now controlled by Democrats — would have to sign off on using Pentagon dollars for the Department of Homeland Security border wall program under a national emergency

The funds likely would be drawn from the Pentagon’s “military construction,” or MILCON, budget, Adams said. 

“There are usually $5 billion to $10 billion of unobligated MILCON funds every year, so the money will be there,” he said. “Now, that will mean the secretaries of the [armed] services won’t be able to upgrade barracks or do other projects on bases, but there’s no sign the president gives a damn or would prioritize that over the wall.”

[Spending deal would kill Donald Trump’s federal pay freeze]

What’s more, the declaration is a signal White House officials have decided they do not need the approval of the congressional committees to shift the funds around. “There’s no actual statutory requirement for that,” Adams said. “A lot of the ways government does business in this town is based on customs. This administration has found every loophole to those customs.”

But Democratic leaders are warning their GOP colleagues to oppose the emergency move.

“The precedent that the president is setting here is something that should be met with great unease and dismay by the Republicans,” Pelosi said. That’s because a Democratic president could declare, for instance, the gun violence epidemic a national emergency to their chagrin, she noted.

Some Republicans also warned of the Pandora’s box Trump may be opening.

“If elected president, how would Elizabeth Warren or Bernie Sanders use this precedent for a national disaster declaration to force the Green New Deal on the American people?” Washington GOP Rep. Cathy McMorris Rodgers said, noting that she opposes the Trump’s decision.

‘We’re building a lot of wall’

The compromise spending bill’s $1.375 billion border fencing amount led Trump to, after weeks of threatening it, revert to the national emergency option after promising his conservative base for years that he would build a wall — later termed a “barrier” – along the U.S.-Mexico border in an attempt to slow the flow of undocumented immigrants into the country. 

[Trump defends signing national emergency to build border wall]

“Just so you know, we’re building the wall anyway,” he told a rally in El Paso, Texas, on Monday. The next day, he signaled to reporters his administration was working on a way to shift funds around to get more into the border project’s coffers, saying: “I’m thrilled because we’re supplementing things and moving things around and we’re doing things that are fantastic, taking from far less important areas, and the bottom line is we’re building a lot of wall.”

The president has repeatedly warned of a “crisis” at the U.S.-Mexico border to justify his move, repeating his hard-line rhetoric that the area is a transit route for lethal narcotics, hordes of migrants making illegal crossings, dangerous criminals and human traffickers. 

On the legal front, any upcoming lawsuits might include congressional Democrats — just one of many potential legal arenas in which they and Trump could tussle over the next two years.

Senate Judiciary member Chris Coons, a Delaware Democrat, predicted “a significant and likely successful challenge in court.” House Majority Leader Steny H. Hoyer signaled a similar sentiment on Jan. 8.

[Trump field tests 2020 campaign attack lines amid latest shutdown drama]

But as another shutdown neared, many GOP lawmakers who previously had concerns about an emergency declaration changed their tunes. They said the conference committee proposed too little for border barrier dollars, giving Trump no choice but to seek the Pentagon monies.

‘He can declare victory’

As the expected legal challenges play out, Rom, the Georgetown professor, suggested both sides can claim wins.

“[Trump] can declare victory, no matter what happens in the courts. The president can now say to his supporters that he has solved the problem, and that he had no other choice. He can say, ‘I’ve done all I can do,’” Rom said. “Democrats can tell their supporters they stood strong and forced the president’s hand.”

But Pelosi indicated Democrats will be methodical, saying of a legal challenge: “First, we have to see what the president says.”

To that end, White House aides Thursday afternoon had only begun mulling how Trump might sign the spending measure and the emergency order. In late January, when he announced he would support a stopgap measure to end the partial government shutdown, he took advantage of an unseasonably warm Washington winter day with an early afternoon Rose Garden event.

The forecast for Friday? Partly sunny and 60 degrees.