Litigating the Constitutionality of Trump’s National Emergency Declaration

By Sam Kulhanek

Associate Editor, Vol. 24

On February 15, 2019, President Trump declared a national emergency in order to push forward his long-standing plans to build a wall along the U.S.-Mexico border.[1] Earlier that same day, Trump had signed an act of Congress appropriating $1.375 billion for the border wall, which fell far short of his desired $5.7 billion and also came with certain restrictions.[2] Trump then announced his intention to declare a national emergency pursuant to the National Emergencies Act[3] in order to get the rest of his desired funding for the wall. Trump’s declaration is now under attack on several fronts as lawmakers, states, landowners, and advocates challenge this attempted “end run” around Congress.[4]

In his proclamation declaring the emergency, Trump stated that the southern border “presents a border security and humanitarian crisis that threatens core national security interests,” and that it was necessary for additional troops and funding for military construction to be made available.[5] Trump now claims that he will have up to $8.1 billion at his disposal in order to build the border wall and finally fulfill his long-time campaign promise.[6] However, Trump is also facing numerous lawsuits challenging the legality of his actions, which many view as an attempt to access funds that Congress explicitly refused to give him, thereby violating the constitutional separation of powers.[7]

The stream of litigation began when a group of Texas landowners filed suit in the D.C. District Court on February 15, alleging that the federal government informed them it would be seeking to build a wall on their properties, threatening an “imminent invasion of their privacy and the quiet enjoyment of their land.”[8] The following day, a group of environmental nonprofits also sued in D.C., voicing concerns about the wildlife habitats and species along the border that would be impacted by the construction of a wall.[9] Next, sixteen states filed a lawsuit in the Northern District of California on February 18, arguing that Trump’s reappropriation of federal funds will divert money that was supposed to be spent in the states instead of on the border wall.[10] Finally, on February 19, the ACLU responded to the emergency declaration by also suing Trump in California on behalf of two nonprofits which allege that Trump’s actions to expedite the border wall harm the interests of their members.[11]

Common threads run throughout these various lawsuits. For instance, each complaint stresses the point that Trump appears to be using his emergency authority simply because he has been repeatedly unable to get Congress’s approval for the border wall, highlighting that the appropriations bill passed the same day as the declaration explicitly denied Trump the $5.7 billion he had demanded.[12] This raises separation of powers concerns, as Congress alone possesses the spending power and yet Trump has taken unilateral executive action in order to usurp that authority and spend money that Congress expressly declined to appropriate.

The complaints also turn Trump’s own words on himself, quoting his response to a press question about the declaration where 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.”[13] This evidence bolsters the plaintiffs’ claims that Trump is manufacturing a national crisis in order to bypass Congress and deliver on his campaign promise. The press has repeatedly questioned the premises of Trump’s claim that there is some sort of crisis at the border, pointing to statistics from agencies within the executive branch, such as the Department of Homeland Security, that appear to be inconsistent with Trump’s own assertions.[14] By attempting to invoke his emergency authority absent an actual national emergency, the plaintiffs in these various lawsuits argue that Trump has failed to meet the necessary statutory requirements to use Department of Defense funds for wall construction. The plaintiffs in each case are seeking declaratory and injunctive relief, meaning that either District Court involved could issue an injunction to prevent construction of the wall.

In addition to the pending litigation, Trump’s emergency declaration is also being targeted by Congress. On February 26, the House voted to overturn the declaration, with thirteen Republicans joining Democrats in an attempt to stop the diversion of funds without congressional approval.[15] Next, the resolution of disapproval goes to the Senate, where Democrats only need four Republicans in order to ratify it; and while Trump has promised to veto the resolution,[16] a unified front by Congress on this issue may lend support to ongoing lawsuits and their arguments regarding the separation of powers. While Trump is already predicting a legal victory for himself,[17] given the plethora of litigation and congressional pushback that he must overcome in order to press forward with construction plans, will the mythical wall ever actually be built?

[1] Proclamation No. 9844, 84 Fed. Reg. 4949 (Feb. 15, 2019).

[2] Phil Mattingly, Congress’ border security deal to avert a shutdown: What’s included, CNN Pol., Feb. 12, 2019 (explaining that the $1.375 billion is for new barriers in the Rio Grande Valley and that the bill specifies that the barriers can only be constructed using existing technologies), https://www.cnn.com/2019/02/12/politics/border-security-deal-details/index.html.

[3] The National Emergencies Act was enacted by Congress in 1976 and set new parameters for the existing presidential power to declare national emergencies. Specifically, it requires the President to “formally declare the existence of a national emergency and to specify what statutory authority activated by the declaration would be used.” It also provides that Congress can pass a joint resolution in order to rescind such a declaration. Cong. Research Serv., 98-505, National Emergency Powers, summary (updated Feb. 27, 2019).

[4] Peter Baker, Emily Cochrane & Maggie Haberman, As Congress Passes Spending Bill, Trump Plans National Emergency to Build Border Wall, The New York Times, Feb. 14, 2019 (quoting Nancy Pelosi), https://www.nytimes.com/2019/02/14/us/politics/trump-national-emergency-border.html.

[5] Proclamation No. 9844, supra note 1. Trump’s justifications for the national emergency have largely centered around gangs, drugs, crime, and undocumented immigrants. See, e.g., The White House, President Donald J. Trump’s Border Security Victory (Feb. 15, 2019), https://www.whitehouse.gov/briefings-statements/president-donald-j-trumps-border-security-victory/.

[6] The White House, supra note 5 (explaining that in addition to the $1.375 billion from the appropriations bill, about $601 million will come from the Treasury Forfeiture Fund, $2.5 billion from Department of Defense (“DoD”) funds for counter-narcotics activities, and $3.6 billion will be reallocated from DoD funds for military construction projects).

[7] See, e.g., Peter Baker, Trump Declares a Nationality Emergency, and Provokes a Constitutional Clash, The New York Times, Feb. 15, 2019, https://www.nytimes.com/2019/02/15/us/politics/national-emergency-trump.html.

[8] Complaint at ¶ 2, Alvarez v. Trump, No. 19-404 (D.D.C. Feb. 15, 2019).

[9] Complaint, Center for Biological Diversity v. Trump, No. 19-408 (D.D.C. Feb. 16, 2019).

[10] Complaint, State of California v. Trump, No. 19-872 (N.D. Cal. Feb. 18, 2019). State parties to the suit include California, Colorado, Connecticut, Delaware, Hawaii, Maine, Minnesota, New Jersey, New Mexico, Nevada, New York, Oregon, Virginia, Illinois, Maryland, and Michigan (through its Attorney General, Dana Nessel).

[11] Complaint, Sierra Club v. Trump, No. 19-892 (N.D. Cal. Feb. 19, 2019).

[12] See, e.g., id. at ¶ 2 (alleging that the “President’s declaration was made solely out of disagreement with Congress’s decision about the proper funding level, location, and timetable for constructing a border wall”); Alvarez, No. 19-404 at ¶ 1 (arguing that rather than “responding to an emergency [Trump’s] Declaration seeks to address a long-running disagreement between the President and Congress about whether to build a wall . . . .”).

[13] See, e.g., State of California, No. 19-872 at ¶ 160.

[14] Stuart Anderson, There is No Border Crisis, Forbes, Jan. 10, 2019 (analyzing data from the Department of Homeland Security on apprehensions of undocumented immigrants along the border), https://www.forbes.com/sites/stuartanderson/2019/01/10/there-is-no-border-crisis/#25bc15976a52.

[15] Emily Cochrane, House Votes to Block Trump’s National Emergency Declaration About the Border, The New York Times, Feb. 26, 2019, https://www.nytimes.com/2019/02/26/us/politics/national-emergency-vote.html.

[16] Matthew Schwartz, Trump Will ‘Protect’ Emergency Declaration if Congress Disapproves, Miller Says, NPR, Feb. 18, 2019, https://www.npr.org/2019/02/18/695620579/trump-will-protect-emergency-declaration-if-congress-disapproves-miller-says.

[17] While discussing his plans to announce a national emergency on the morning of February 15th, Trump stated, “we’ll end up in the Supreme Court, and hopefully we’ll get a fair shake. And we’ll win in the Supreme Court, just like the ban.” The White House, Remarks by President Trump on the National Security and Humanitarian Crisis on our Southern Border (Feb. 15, 2019), https://www.whitehouse.gov/briefings-statements/remarks-president-trump-national-security-humanitarian-crisis-southern-border/.