The Justice Department has told the White House that the president’s action is likely to be blocked in the courts, and the White House counsel’s office warned Trump against declaring a national emergency, calling it a “high litigation risk,” according to a person with knowledge of the discussions.
“Any crisis on our border is of President Trump’s own making,” declared Xavier Becerra, the attorney general of California and a likely litigant. “Family separations, child detention, turning our backs on asylum seekers, and more. There is no national emergency. If Trump oversteps his authority and abandons negotiations with Congress by declaring a fabricated national emergency, we won’t only call his bluff, we will do what we must to hold him accountable. No one is above the law.”
White House lawyers have told Trump he could reprogram money without calling an emergency, according to the person familiar with the discussions who, like others, spoke on the condition of anonymity to discuss internal deliberations. But Trump is concerned there is not enough money in those pots to show meaningful progress on the wall and has been determined to declare an emergency, partially for fear of looking weak, the person familiar with the matter said.
Anyone who claims certainty about the ultimate legal outcome, which will most likely come from the Supreme Court, is playing in their own field of dreams.
Almost every judge who ruled on the president’s travel ban thought it an overreach of constitutional proportions motivated by racial and ethnic animus. The Supreme Court disagreed in a 5-to-4 decision last June, voting along traditional ideological lines.
The ruling stressed the “deference” owed the president, particularly in matters involving immigration and claims of national security. Congress “entrusted” the president by statute with the authority to determine when the “entry of aliens would be detrimental” to the national interest, the majority said.
That opinion, in Trump v. Hawaii, is likely to have a significant impact on the outcome of any challenge to a Trump emergency declaration, thanks in considerable measure to Congress itself.
In 1976, thinking it was cracking down on presidentially declared states of emergency, Congress passed a law, the National Emergencies Act, that actually enabled them.
“When you and I think of an emergency, we think of the U.S. under attack,” said Josh Blackman, a constitutional law professor at the South Texas College of Law in Houston. “But the statute doesn’t have that sort of definition.”
Indeed, it has no definition.
Much may depend “on what pots of money [the president] intends to use, and how he intends to use them,” said Mary McCord, a senior litigator at the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center.
If Trump moves large chunks of money around that were appropriated for other purposes, that will provide a constitutional issue missing in the travel ban case, whether or not he declares an emergency. Democrats in Congress will say Trump is encroaching on spending powers delegated exclusively to Congress by Article I of the Constitution.
Such a claim would leave the courts caught between branches of government in a separation of powers case in which Congress — or at least Democrats in Congress — will be demanding “deference,” not the president.
A crucial question, always difficult, will be whether members of Congress can find a judge to agree they have standing to sue. To maximize their chances, Democrats in Congress would first need to make an effort to overturn Trump’s action on their own.
The National Emergencies Act has a provision stating that Congress has 15 days to pass a joint resolution of disapproval. House Democrats are gearing up to pass such a resolution, a move that will force Senate Republicans to vote on a contentious issue that divides their party. Trump could veto it, unless Congress passes it with a veto-proof majority.
If the resolution fails, the House would be in a better position to sue.
The argument for lawmakers’ ability to sue likely would rely on a 2015 case involving Sylvia Mathews Burwell, then the secretary of health and human services. The GOP-led House sued the Obama administration over its effort to use federal money to reimburse health insurers for federal subsidies offered under the Affordable Care Act without an explicit congressional appropriation. U.S. District Judge Rosemary Collyer ruled that the House had standing to argue that its constitutional power to control spending had been violated.
The House’s constitutional claim likely would rely on a 1952 landmark Supreme Court decision, Youngstown Sheet & Tube v. Sawyer, in which the justices ruled that the president’s powers are at their weakest when he acts in defiance of Congress.
But the judiciary is undergoing deep and rapid change, with another new associate justice, Brett M. Kavanaugh, on the high court and some 83 Trump-appointed federal judges at the district court and appeals court level already in place.