16 states file suit over pres­i­dent’s bor­der-wall bid


WASH­ING­TON — A coali­tion of 16 Demo­cratic-con­trolled states, in­clud­ing Cal­i­for­nia and New York, chal­lenged Pres­i­dent Don­ald Trump in court Mon­day over his plan to use emer­gency pow­ers to spend bil­lions of dol­lars on his bor­der wall.

The law­suit is part of a con­sti­tu­tional con­fronta­tion that Trump set off on Fri­day when he de­clared that he would spend bil­lions of dol­lars more on bor­der bar­ri­ers than Congress had granted him. The clash raises ques­tions over con­gres­sional con­trol of spend­ing, the scope of emer­gency pow­ers granted to the pres­i­dent, and how far the courts are will­ing to go to set­tle such a dis­pute.

The suit, filed in U.S. 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 Congress con­trols spend­ing.

Xavier Be­cerra, the at­tor­ney gen­eral of Cal­i­for­nia, said in an in­ter­view that the pres­i­dent had un­der­cut his ar­gu­ment that there was an emer­gency at the bor­der.

“Prob­a­bly the best ev­i­dence is the pres­i­dent’s own words,” he said, re­fer­ring to Trump’s speech Fri­day, when he an­nounced his plan by not­ing that “I didn’t need to do this, but I’d rather do it much faster.”

The law­suit, Cal­i­for­nia et al. v. Trump et al., says 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 and law en­force­ment ini­tia­tives to­ward build­ing a wall on the United States-Mex­ico bor­der,” the law­suit says.

The dis­pute stems from steps Trump said he would take af­ter law­mak­ers granted him only $1.375 bil­lion for new bor­der bar­ri­ers, leg­is­la­tion he signed last week to avoid an­other gov­ern­ment shut­down.

Trump as­serted the power to tap three ad­di­tional pots of money on his own: $600 mil­lion from a Trea­sury De­part­ment as­set for­fei­ture fund for law en­force­ment pri­or­i­ties; about $2.5 bil­lion from a mil­i­tary anti-drug ac­count, most of which would be si­phoned from other mil­i­tary pro­grams the Pen­tagon largely has yet to iden­tify; and $3.6 bil­lion in mil­i­tary con­struc­tion funds that he said he could re­di­rect by in­vok­ing an emer­gency-pow­ers statute.

“Even though Trump’s po­lit­i­cal ma­neu­ver to get around an un­co­op­er­a­tive Congress looks like it stretches the Con­sti­tu­tion, the ques­tions pre­sented in court will raise or­di­nary and com­pli­cated is­sues of ad­min­is­tra­tive law,” said Peter M. Shane, an Ohio State Univer­sity law pro­fes­sor and co-author of a sep­a­ra­tion-of-pow­ers case­book.

Two cases had al­ready been filed af­ter Trump’s an­nounce­ment — one by the non­profit watch­dog group Pub­lic Ci­ti­zen, rep­re­sent­ing sev­eral Texas landown­ers and a Texas en­vi­ron­men­tal group, and the other a case jointly brought by the Cen­ter for Bi­o­log­i­cal Di­ver­sity, De­fend­ers of Wildlife and the An­i­mal Le­gal De­fense Fund.

At least two other law­suits are ex­pected to be filed later this week. The Amer­i­can Civil Lib­er­ties Union has an­nounced its in­ten­tion to file a case, but it has not yet pub­licly iden­ti­fied its client. The other case is to be brought by Pro­tect Democ­racy, an­other watch­dog group, and the Niska­nen Cen­ter, a cen­ter-right pol­icy in­sti­tute, on be­half of El Paso County, Texas, and the Bor­der Net­work for Hu­man Rights.

Le­gal spe­cial­ists ex­pected the Jus­tice De­part­ment to urge a court not to con­sider facts about the bor­der or Trump’s

words, but rather to de­fer to the pres­i­dent’s de­ci­sion. The courts have a long his­tory of be­ing re­luc­tant to sub­sti­tute their own judg­ment for the pres­i­dent’s about a se­cu­rity threat.

The Trump ad­min­is­tra­tion will have a pow­er­ful ar­gu­ment to in­voke: In the Na­tional Emer­gen­cies Act, Congress de­fined no stan­dard for what con­di­tions have to be met be­fore a pres­i­dent may de­ter­mine that a qual­i­fy­ing cri­sis ex­ists.

But be­fore a judge could weigh whether Trump in­voked the statute le­git­i­mately, he would have to de­cide whether the dis­pute was prop­erly be­fore the court in the first place.

Fur­ther com­pli­cat­ing mat­ters, the ad­min­is­tra­tion has said it in­tends to spend the funds in se­quence, start­ing with the $1.375 bil­lion Congress ap­pro­pri­ated and reach­ing the emer­gency-power fund­ing last. The Jus­tice De­part­ment is likely to ar­gue that if no dis­puted spend­ing is im­mi­nent, then the case is not ripe for lit­i­ga­tion and should be dis­missed.

Ian Bassin, the ex­ec­u­tive di­rec­tor of Pro­tect Democ­racy, said El Paso County would prob­a­bly ar­gue that its econ­omy was be­ing harmed by Trump’s emer­gency dec­la­ra­tion be­cause it sig­naled to busi­nesses and po­ten­tial tourists that they should stay away.

The Jus­tice De­part­ment de­clined

to com­ment on the wave of law­suits. Trump said he ex­pected to be sued and to lose in lower courts, but he pre­dicted he would even­tu­ally pre­vail be­fore the Supreme Court.

But plain­tiffs can also chal­lenge whether the ad­min­is­tra­tion is in­ter­pret­ing sev­eral statutes cor­rectly.

The pro­vi­sion that gives the sec­re­tary of de­fense the au­thor­ity to trans­fer some Pen­tagon money from the anti-drug ac­count Trump is plan­ning to tap, for ex­am­ple, says it may be in­voked “in no case where the item for which funds are re­quested has been de­nied by the Congress” — rais­ing the ques­tion of whether ex­tra fund­ing for bor­der bar­ri­ers counts as such a for­bid­den item.

And the emer­gency-pow­ers statute Trump plans to use per­mits mil­i­tary con­struc­tion spend­ing in an emer­gency that re­quires the use of the armed forces for projects “to sup­port such use.” That has been used be­fore to build up for­eign mil­i­tary bases in a war ef­fort, but lit­i­gants chal­lenge whether a per­ma­nent wall to help civil­ian agen­cies po­lice the bor­der qual­i­fies un­der that word­ing.

“Judges will cer­tainly be aware of the larger in­sti­tu­tional con­text when they ad­dress those tech­ni­cal is­sues, but that aware­ness will not, by it­self, de­ter­mine how the le­gal ques­tions get re­solved,” Shane said.


Pres­i­dent Don­ald Trump speaks to a Venezue­lan Amer­i­can com­mu­nity Mon­day at Florida Ocean Bank Con­vo­ca­tion Cen­ter at Florida In­ter­na­tional Univer­sity in Mi­ami.

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