US state sue over emergency declaration
February 20, 2019 | Expert Insights
California and 15 other US states have filed a lawsuit against US President Trump’s national emergency declaration which can bypass Congress to fund the US Mexico border wall.
Background
A state of emergency can be declared during a disaster, civil unrest or armed conflict. This can be used as a rationale or pretext for suspending rights and freedoms guaranteed under a country's constitution or basic law.
President Trump is willing to initiate a state of national emergency in order to obtain funds to build a wall along the Mexico border. The Congress has refused to approve $5.7bn (£4.4bn) for the wall. Throughout his 2016 presidential campaign, Donald Trump called for the construction of a much larger and fortified border wall, claiming that if elected, he would "build the wall and make Mexico pay for it." On January 25, 2017, the Trump administration signed Executive Order 13767, which formally directed the US government to begin attempting to construct a border wall using existing federal funding. Disagreement over the issue led to a 35-day government shutdown - the longest in US history.
The National Emergencies Act contains a clause that allows Congress to terminate the emergency status if both houses vote for it - and the president does not veto.
Analysis
A coalition of 16 states filed a federal lawsuit Monday to block President Trump’s plan to build a border wall without permission from Congress, arguing that the president’s decision to declare a national emergency is unconstitutional. In addition to California, the states participating in the suit are Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon and Virginia. With the exception of the Maryland Gov. Larry Hogan (R), the governors of the other states are Democrats.
The complaint was filed in the U.S. District Court for the Northern District of California, a San Francisco-based court whose judges have ruled against an array of other Trump administration policies, including immigration and the environment. California Attorney General Xavier Becerra said they were taking President Trump to court "to block his misuse of presidential power". "We're suing President Trump to stop him from unilaterally robbing taxpayer funds lawfully set aside by Congress for the people of our states. For most of us, the office of the presidency is not a place for theatre," he added.
“President Trump is manufacturing a crisis and declaring a made-up ‘national emergency’ in order to seize power and undermine the Constitution,” said California Governor Gavin Newsom in a statement. “This ’emergency’ is a national disgrace.”
The lawsuit, brought by states with Democratic governors except Maryland seeks a preliminary injunction that would prevent the president from acting on his emergency declaration while the case evolves in the courts. Accusing the president of “an unconstitutional and unlawful scheme,” the suit says the states are trying “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.” Several non-profit organizations already have gone to court or announced plans to sue
Through the declared emergency, White House officials plan to use $8 billion to build sections of a barrier that will obstruct or deter migrants from crossing into the country which is $6.6 billion more than what the Congress had allotted for the purpose. The White House intends to divert $3.6 billion from military construction accounts and $2.5 billion from Defense Department efforts to fight illicit drugs. Residents of the participating states and the states themselves —could be harmed by the diversion of money. They include loss of funding to military bases, weakened drug-fighting efforts and damage to states’ economies.
The complaint says that once Congress passes laws and a president signs them, the Constitution requires that the president “take care that the laws be faithfully executed.” Another clause of the Constitution, the lawsuit notes, prevents money from being paid from the U.S. Treasury unless Congress has appropriated it. The lawsuit also says that the “federal government’s own data prove there is no national emergency at the southern border that warrants the construction of a wall. Customs and Border Protection data show that unlawful entries are near 45-year lows.”
Assessment
Our assessment is that the use of national emergency to secure funding creates a dangerous precedent in the event of a future Democratic president. It can be noted that emergency declarations by previous presidents have been used for addressing foreign policy crises including blocking terrorism-linked entities from accessing funds or prohibiting investment in nations associated with human rights abuses. We feel that challenging this move is likely to minimize the threat to US national security.
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