Experts: Trump’s action faces uncertain legal fate

WASHINGTON — Let the lawsuits begin.

President Donald Trump declared a national emergency along the southern border Friday and predicted his administration would end up defending it all the way to the U.S. Supreme Court.

That might have been the only thing Trump said Friday that produced nearuniversal agreement.

The American Civil Liberties Union announced its intention to sue less than an hour after the White House released the text of Trump’s declaration that the “current situation at the southern border presents a border security and humanitarian crisis that threatens core national security interests and constitutes a national emergency.”

House Speaker Nancy Pelosi and several Democratic state attorneys general already have said they might go to court.

The coming legal fight seems likely to hinge on two main issues: Can the president declare a national emergency to build a border wall in the face of Congress’ refusal to give him all the money he wanted and can the Defense Department take money from some congressionally approved military construction projects to pay for wall construction?

The Pentagon has not said which projects might be affected.

Trump’s signature on the declaration set in motion a quick march to the courthouse.

Trump relied on the National Emergencies Act of 1976, which Congress adopted as a way to put some limits on presidential use of national emergencies. The act requires a president to notify Congress publicly of the national emergency and to report every six months. The law also says the president must renew the emergency every year, simply by notifying Congress.

The House and Senate also can revoke a declaration by majority vote, though it would take a two-thirds vote by each house to override an expected presidential veto.

The law doesn’t say what constitutes a national emergency or impose any other limits on the president.

The broad grant of discretion to the president could make it hard to persuade courts to rule that Trump exceeded his authority. “He’s the one who gets to make the call. We can’t second-guess it,” said John Eastman, a professor of constitutional law at the Chapman University School of Law.

Courts often are reluctant to look beyond the justifications the president included in his proclamation, Ohio State University law professor Peter Shane said.

But other legal experts said the facts are arrayed against the president. They include government statistics showing a decadeslong decline in illegal border crossings as well as Trump’s rejection of a deal last year that would have provided more than the nearly $1.4 billion he got for border security in the budget agreement he signed Thursday.

Opponents of the declaration also are certain to use Trump’s own words at his Rose Garden news conference Friday to argue that there is no emergency on the border.

“I could do the wall over a longer period of time,” Trump said. “I didn’t need to do this, but I’d rather do it much faster.”