Legal
Trump Emergency Action Draws Lawsuits from States, 'Green' Groups
Move to shift funds from military, Corps civil projects to wall faces challenges
Court challenges to President Trump’s emergency declaration to build a $5.7-billion border wall between the United States and Mexico are increasing in number.
Attorneys general from 16 states with Democratic governors, plus Maryland, on Feb. 18 filed a lawsuit in a federal district court in California challenging Trump’s action and the attempt to use funding appropriated by Congress for other purposes to construct the wall.
Three environmental groups—the Defenders of Wildlife, Center for Biological Diversity and the Animal Legal Defense Fund—on Feb. 16 challenged Trump’s declaration in federal district court for the District of Columbia, on similar grounds.
In addition, advocacy group Public Citizen filed a lawsuit on Feb. 15 on behalf of the Frontera Audubon Society and three South Texas landowners who were told by the government that it would seek to build a border wall on their properties if money was available in 2019.
Mike Kennedy, general counsel for the Associated General Contractors of America, says that those who expect a sweeping decision from any of the courts are likely to be disappointed.
Kennedy says that much of the language in statutes that might be used to justify the administration’s case is ambiguous, and there is not a body of law established to clarify what the president’s authority is.
“I think the courts will make as narrow a ruling as they can make,” he adds. “You’re going to see courts carefully parsing legislative language.”
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The three environmental organizations contend that the border wall would have a negative impact on wildlife that lives in the vicinity of the border, particularly species whose habitat bisects the border, says Jason Rylander, senior counsel with Defenders of Wildlife.
Trump invoked the National Emergencies Act and immigration law in his Feb. 15 declaration to build the barrier. Under the administration’s plan, most or all of the funds would be diverted from money appropriated in previous years for military construction projects, or U.S. Army Corps of Engineers civil-works projects.
Rylander says that the litigants are seeking to get a clearer picture of where and how the funds would be allocated. “The administration has made so many conflicting statements about what money was going to be used and when,” he says. Nearly $1 billion in funds already appropriated for building a border fence have not been used, he notes.
Presidents have declared at least 58 states of emergency since the National Emergencies Act was enacted more than 40 years ago. Most relate to sanctions or export restrictions.
All of the recent spate of lawsuits contend that the president lacks the authority under existing law to use the emergency declaration to circumvent the will of Congress to pay for the wall. “Declaring a national emergency when one does not exist is immoral and illegal,” New York Attorney General Letitia James said in a statement.
The states allege that the declaration exceeds the power of the executive office, violates the U.S. Constitution and federal statutes and would illegally and unconstitutionally divert federal funds appropriated by Congress for other purposes.
Joining New York and Maryland in the states’ lawsuit are California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon and Virginia.
The cases in the U.S. District Court for the D.C. Circuit have been assigned to Judge Trevor McFadden, a 2017 Trump nominee.
