WASHINGTON, D.C. – In a move that was more than expected, it was promised, 16 states are suing the Trump administration in response to the president’s national emergency declaration over border insecurity. At the crux of the lawsuit are claims that the president is violating the separation of powers clause in the U.S. Constitution by using funds originally allocated for other purposes to bolster border security.
The states include California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, and Virginia.
From the New York Times:
“The suit, filed in Federal District Court in San Francisco, argues that the president does not have the power to divert funds for constructing a wall along the Mexican border because it is Congress that controls spending.
The lawsuit, California et al. v. Trump et al., says that the plaintiff states are going to court to protect their residents, natural resources and economic interests. “Contrary to the will of Congress, the president has used the pretext of a manufactured ‘crisis’ of unlawful immigration to declare a national emergency and redirect federal dollars appropriated for drug interdiction, military construction and law enforcement initiatives toward building a wall on the United States-Mexico border,” the lawsuit says.”
Legal scholars seem to agree the the president is constitutionally permitted to declasre a national emergency, because the language is vague and the term ’emergency’ is not clearly defined. Does the porous border, resulting in largely unmitigated illegal immigration represent a national emergency? It depends who you ask. The courts have, in the past, been reluctant to block such presidential authority unless congress is also making moves to claw back that authority.
What he does next in securing funding and building border security infrastructure creates a more serious debate. There are a couple of statutes the president is likely relying on in court.
One statute, 33 U.S. Code § 2293, says: “Reprogramming during national emergencies,” permits the president to “apply the resources of the Department of the Army’s civil works program, including funds, personnel, and equipment, to construct or assist in the construction, operation, maintenance, and repair of authorized civil works, military construction, and civil defense projects that are essential to the national defense.”
Another, 10 U.S. Code § 2808, dictates: “Construction authority in the event of a declaration of war or national emergency,” permits the secretary of defense, in a presidentially declared emergency, to use “funds that have been appropriated for military construction” for the purpose of undertaking “military construction projects.”
With the demonstrable criminal element inherent in unchecked illegal immigration, the case for using these executive powers to reinforce and complete border security, as essential to ensuring national security, has its merits.
Being that the lawsuit was filed in the 9th District, a system that has regularly ruled against President Trump, it wouldn’t be a surprise to see them slap the declaration down. However, because it is sure to be appealed either way, the 9th District is insignificant. This lawsuit is likely going to the Supreme Court.