Legal challenges to President Trump’s national emergency declaration are starting to pile up. Days after multiple advocacy groups filed lawsuits challenging the president’s “national emergency,” 16 states have sued the Trump administration over the president’s scheme to use executive privilege to build a border wall without the approval of Congress. The suit was orchestrated by California, and filed in the U.S. District Court for the North District of the state.
“Today, on Presidents Day, we take President Trump to court to block his misuse of presidential power,” California Attorney General Xavier Becerra said in a statement on Monday. “[Trump] is willing to manipulate the Office of the Presidency to engage in unconstitutional theater performed to convince his audience that he is committed to his ‘beautiful’ border wall. We’re suing President Trump to stop him from unilaterally robbing taxpayer funds lawfully set aside by Congress for the people of our states.”
Trump responded Tuesday morning, attributing the lawsuit to “Open Border Democrats and the Radical Left” while attacking California for its sputtering high-speed rail project.
As I predicted, 16 states, led mostly by Open Border Democrats and the Radical Left, have filed a lawsuit in, of course, the 9th Circuit! California, the state that has wasted billions of dollars on their out of control Fast Train, with no hope of completion, seems in charge!
— Donald J. Trump (@realDonaldTrump) February 19, 2019
The failed Fast Train project in California, where the cost overruns are becoming world record setting, is hundreds of times more expensive than the desperately needed Wall!
— Donald J. Trump (@realDonaldTrump) February 19, 2019
Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon and Virginia are the 15 states that have joined California. Maryland is the only state on the suit with a Republican governor, although its attorney general is a Democrat.
The filing alleges that the national emergency declaration the president signed last Friday is an “unconstitutional and unlawful scheme” based on a “manufactured ‘crisis’ of unlawful immigration.’ The suit seeks a preliminary injunction that would prevent Trump from redirecting funding earmarked for other government programs toward the construction of a border wall. The litigation marks an effort on behalf of the states involved to “protect their residents, natural resources, and economic interests from President Donald J. Trump’s flagrant disregard of fundamental separation of powers principles engrained in the United States Constitution.”
As he wrote on Twitter Tuesday morning, Trump did indeed predict the lawsuit. “We will have a national emergency, and we will then be sued,” the president said Friday. “And they will sue us in the Ninth Circuit, even though it shouldn’t be there. And we’ll possibly get a bad ruling and then we’ll get another bad ruling and then we’ll end up the Supreme Court, and then hopefully we’ll get a fair shake and we’ll win in the Supreme Court, just like the [travel] ban.”
More relevant to the lawsuit, however, is something else Trump said in the speech. “I could do the wall over a longer period of time,” the president explained on Friday. “I didn’t need to do this. But I’d rather do it much faster.”
— Kyle Griffin (@kylegriffin1) February 19, 2019
The National Emergencies Act of 1976 gives the president broad powers to exert his executive privilege, and those filing lawsuits may be hoping the courts will find that Trump’s thirst for a border wall does not fit of any conceivable definition of a national emergency. The president — who was spotted at an omelet bar at his Palm Beach golf club the morning after declaring the nation in a state of emergency — essentially admitted that constructing the wall is not a time-sensitive issue, as has pretty much anyone whose dignity hasn’t been entirely co-opted by the president. Even Trump-friendly legal expert Alan Dershowitz called the declaration “very questionable” and a “mistake.”
Chris Wallace seemed to feel similarly while questioning Trump’s chief immigration hawk, Stephen Miller, on Fox News Sunday. Wallace noted that of the 59 times a president has declared a national emergency, the only two times it was done for military construction were during the Gulf War and in the wake of 9/11. “This is hardly comparable to either of those,” said Wallace, who then pressed Miller for an example of a president declaring a national emergency solely to get money that was refused to him by Congress. Miller responded by leaning on the language of the National Emergencies Act, as the president’s legal team is sure to do in defending the action in court. The NEA does not stipulate any sort of standard for what constitutes a national emergency.
— FoxNewsSunday (@FoxNewsSunday) February 17, 2019
Also not convinced are the American people, who polling suggests have opposed Trump at every turn since the government entered a partial shutdown on December 21st. According to an NPR/PBS NewsHour/Marist poll released Tuesday morning, 61 percent of American disapprove of the national emergency declaration, including 63 percent of independents.
But as Trump noted on Friday, the backlash to the declaration is beginning to look a lot like the response to the administration’s “travel ban” on predominantly Muslim nations, which resulted in a similar flood of lawsuits. The ban was struck down in federal court before making it to the Supreme Court, which upheld it on party lines. Like the travel ban, Trump’s national emergency declaration is an issue of executive privilege, meaning there’s a good chance it could be upheld if it makes it to the nation’s highest court, especially considering that court now contains Justice Brett Kavanaugh, whose radical views of executive power have been well documented.
“Trump will feel that he can do what he wants with all the presumptions normally accorded someone of his office, and the Supreme Court is not going to do much to stop him,” Rolling Stone‘s David S. Cohen warned after the Supreme Court upheld the travel ban in June. “While those of us who care about the abuses that can come from an unchecked executive have to hope that there will be cases down the line where that’s not the case, the truth is, Trump is going to take this decision and run with it.”