Tuesday, February 19, 2019
Sixteen states filed suit in the Northern District of California to halt President Trump's emergency action to reprogram federal funds to build the wall. The lawsuit follows an earlier suit filed by Public Citizen, and a third one filed by environmental groups. (Both of those are in the D.C. District.)
The suits all raise similar claims (there is no "emergency" under the National Emergencies Act, and, even if there were, it doesn't unlock the authorities that President Trump is using to reprogram funds, and other cited authorities are unavailable) and ask for similar relief (a declaration that President Trump's action is unlawful, and an injunction to halt it).
In addition to declaring an emergency under the NEA, President Trump identified three sources of funds for reprogramming. First, 10 U.S.C. Sec. 2808 allows the Secretary of Defense to "undertake military construction projects . . . not otherwise authorized by law that are necessary to support such use of the armed forces." (Section 2808 funds are only available upon the President's declaration of an emergency under the NEA, so the President's emergency declaration "unlocks" those funds.) Second, 10 U.S.C. Sec. 284 authorizes the Secretary of Defense to support certain counterdrug actions on the request of another department or agency or a state or local official, including "[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States." (Section 284 allows the Secretary of Defense to reprogram funds without an emergency declaration under the NEA.) Finally, 31 U.S.C. Sec. 9705 provides that after reserves and required transfers, the Treasury Forfeiture Fund's "unobligated balances . . . shall be available to the Secretary . . . for obligation or expenditure in connection with the law enforcement activities of any Federal agency. . . ." (Section 9705 also allows action without a presidential emergency declaration.) (The proclamation also invokes the Ready Reserve provision, allowing the Secretary of Defense, upon the President's declaration of an emergency, to call up "any unit, and any member not assigned to a unit to serve as a unit . . . for not more than 24 months.")
According to the White House Fact Sheet, President Trump's action authorizes reprogramming of funds (1) from the Treasury Forfeiture Fund (Section 9705, about $601 million), (2) counterdrug activities (Section 284, up to $2.5 billion), (3) and military construction (Section 2808, up to $3.6 billion). Importantly, "[t]hese funding sources will be used sequentially and as needed."
The states argue first that there is no emergency under the NEA, and that President Trump therefore lacked authority to declare one. The complaint details the ton of evidence, much from the government itself, on illegal immigration across the southern border, crime by illegal immigrants, and drugs that cross the southern border and argues that this simply doesn't add up to an NEA "emergency."
The states claim that even if there is an emergency, the President can't unlock federal funds under Section 2808. That's because building the wall doesn't "require use of the armed forces." Moreover, the President can't reprogram counterdrug money under Section 284, because "the proposed border wall will not assist in blocking 'drug smuggling corridors.'" Finally, the President can't tap Treasury Forfeiture Funds, because the statutory criteria under that statute aren't satisfied.
The states also argue that the administration violated the National Environmental Protection Act, because it failed to prepare an Environmental Impact Assessment for the wall.
The states claim that the President's actions violate the separation of powers, encroach upon Congress's spending power, and violate the relevant statutes.
As to standing, the states argue that they'll lose federal funds and the resulting economic activity when the administration reprograms money already allocated to other projects:
If the Administration were to use the funding sources identified in the Executive Actions, Plaintiff States collectively stand to lose millions in federal funding that their national guard units receive for domestic drug interdiction and counter-drug activities, and millions of dollars received on an annual basis for law enforcement programs from the Treasury Forfeiture Fund, harming the public safety of Plaintiff States. The redirection of funding from authorized military construction projects located in Plaintiff States will cause damage to their economies. Plaintiff States will face harm to their proprietary interests by the diversion of funding from military construction projects for the States' national guard units. And the construction of a wall along California's and New Mexico's southern borders will cause irreparable environmental damage to those States' natural resources.