Friday, October 11, 2019
From the Border Network for Human Rights
EL PASO, TX - Today, a Texas federal court ruled that President Trump’s proclamation of a national emergency along the Southern border violated federal law. The court declared that the president’s proclamation is invalid because it illegally sought to override Congress’s decision to not fund further border wall construction. The court invited the plaintiffs, El Paso County, Texas, and the Border Network for Human Right to propose terms for an injunction that would prevent the government from using funds to build border barriers that Congress specifically refused to authorize.
This lawsuit, which is unrelated to one brought in California challenging the president’s shuffling of Department of Defense funding streams to pay for his border wall, was brought on behalf of El Paso County, Texas, and the Border Network for Human Rights—an El Paso-based nonprofit dedicated to ensuring the participation of marginalized border communities and defending human and civil rights.
Kristy Parker, Counsel for Protect Democracy, a nonpartisan nonprofit which represented the plaintiffs, said: “Throughout history, democracies have been felled by overzealous leaders who sought to aggrandize their own powers under the banner of real or imagined ‘emergencies.’ Our Founders were wise enough to anticipate that danger and created a strong separation of powers to prevent that from happening here. Today’s ruling vindicates the Founders’ wisdom and confirms that the president is not a king, and that he cannot override Congress’s power to decide how to appropriate funds.
Stuart Gerson, former Acting U.S. Attorney General and co-counsel for the plaintiffs, said: “As someone who served in government under a Republican administration, I never imagined a Republican president would attempt to expand executive power this far by overriding the appropriations power that belongs to Congress. I hope today’s ruling will prompt Republicans in Washington to recommit to the checks and balances that have defined our Republic and protected our freedom.”
The plaintiffs filed the lawsuit in February, after President Trump declared a national emergency and used that declaration to access funding for building a border wall that had been appropriated for other purposes. That declaration prompted a series of legal challenges. This is the first ruling on whether the emergency declaration itself was legally valid.
This case is also notable for the cross-ideological legal team behind it, and where it was filed. The legal team includes not only Protect Democracy, but also the Niskanen Center, a center-right policy think tank; former Acting U.S. Attorney General Stuart Gerson, a top aide to President George H.W. Bush and founding member of the conservative nonprofit Checks and Balances; Harvard Law Professor Laurence Tribe, one of the nation’s leading constitutional law experts who represented Al Gore in Bush v. Gore; and the law firms Willkie Farr & Gallagher LLP and O’Melveny & Myers LLP.
And whereas when the president issued the emergency declaration he predicted that “they will sue us in the Ninth Circuit,” this case was brought in the famously conservative Fifth Circuit. According to Gerson, that’s because “This is where our clients were harmed and it doesn’t take a liberal or a conservative to know that what the President has done would make Madison and Hamilton roll over in their graves -- it’s the most foundational aspect of our Constitution that Congress and not the President gets to appropriate funds.”
A prior ruling by a federal court in California temporarily enjoined the administration from constructing parts of the wall by using certain Department of Defense funds the administration claimed it could access without relying on emergency powers. That decision was put on hold by the Supreme Court, allowing construction using those funds to continue while that litigation proceeds.
In this case, the plaintiffs argued that the president’s national emergency declaration exceeded his powers both under statutory law and the Constitution, and that its mere issuance injured border communities. The court based its ruling on statutory grounds and did not reach the constitutional issues. As detailed in their complaint, President Trump declared the emergency after months of failed attempts to obtain additional funding for his border wall culminated in the longest U.S. government shutdown in history. He publicly acknowledged that there was no urgency, saying “I didn’t need to do this, but I’d rather do it much faster.” The administration then moved to transfer $8.1 billion for border wall construction efforts – $6.7 billion more than the $1.375 billion approved by Congress.
The Trump administration moved to dismiss the case, contending that while Congress denied the Department of Homeland Security authority to spend more than $1.375 billion on border wall construction, the president has the discretion, including through declaring a national emergency, to reprogram existing funds for those barriers. The administration’s central argument was that the president has unfettered and unreviewable authority to access military construction funds by declaring an “emergency” under the National Emergencies Act.
The administration’s position, had it been accepted, would have significantly weakened Congress's appropriations power by giving the president power to override appropriations decisions using the National Emergencies Act—unless Congress musters a veto-proof majority to disapprove. It also would have changed the presumption that the executive branch cannot spend money unless Congress specifically approves it, which would force Congress to anticipate and negate loopholes through which the executive branch might seek to spend government money.
Enveloped in this friction between executive and congressional powers were the border communities themselves. The plaintiffs asserted that the emergency declaration harmed them and their community by falsely characterizing the border region and the people who live there – many of whom are immigrants – as dangerous, and by jeopardizing business and tourism opportunities. The emergency declaration also redirected funds away from Fort Bliss, an economic engine in the region, and initiated construction that the majority of the community had opposed through their elected representatives.
This case highlights the danger that political scientists say is inherent in a president using emergency powers to pursue policy objectives. As Protect Democracy advisers and authors of “How Democracies Die,” Daniel Ziblatt and Steven Levitsky, warned in The New York Times, “National emergencies can threaten the constitutional balance even under democratically minded presidents like Abraham Lincoln and Franklin Roosevelt. But they can be fatal under would-be autocrats . . . Crises present such great opportunities for concentrating power that would-be autocrats often manufacture them . . . [T]hese developments should set off alarm bells. Our president is behaving like an autocrat.”
For more information about the case, visit EndTheEmergency.org.
The ruling and other case documents can be found at https://protectdemocracy.org/