The Trump administration is arguing that the president’s national emergency declaration for the purpose of building a border wall cannot be reviewed by the courts and is not subject to any limitations.
In a response to two lawsuits filed in federal court, the administration is also challenging the litigants’ standing to sue, saying the plaintiffs are unable to show that the declaration or any action flowing from it has caused them harm.
As Justice Department lawyers responded to the complaints from private litigants, which include conservation groups and advocacy organizations representing a group of Texans living near the border, the U.S. House of Representatives filed its own challenge Friday in federal court in Washington.
“Having lost the political fight over funds to construct the wall,” the House declared, “the Administration took the extraordinary step of announcing that it would nevertheless spend up to $8.1 billion on wall construction. In doing so, the Administration flouted fundamental separation-of-powers principles and usurped for itself legislative power specifically vested by the Constitution in Congress. “Even the monarchs of England long ago lost the power to raise and spend money without the approval of parliament,” it said.
The House suit focused largely on the shifting of funds from military and drug interdiction programs to help pay for the wall, arguing that neither diversion could be justified legally or constitutionally, Trump’s declaration of an emergency notwithstanding.
The administration is also expected to challenge the standing of the House to sue, a controversial issue in itself over the years.
The filings in what many expect to be a historic court battle over presidential power come amid the president’s continued campaign to convince Americans of a growing crisis along the U.S.-Mexico border that features what he has called an “invasion” of migrants and the trafficking of people and drugs.
Trump threatened to close the border entirely but backed away this week after business leaders and fellow Republican voiced fears of the potentially devastating economic impact of such a move. Trump visited border areas in California on Friday to show off portions of a barrier he said were already built or were under construction.
Trump declared an emergency, claiming the power to spend money to build the barrier, after Congress did not approve his full request for funds. He based his action in part on the National Emergencies Act, a 1976 law that empowers presidents to proclaim emergencies. In that statute, Congress did not define or limit the term “emergency” or create any explicit right to challenge an emergency in court.
Justice Department lawyers, responding to the private suits filed in February, seized on those gaps as evidence that “Congress intentionally” gave unlimited discretion to the president with no “role for the courts.”
The administration’s response was an opening salvo against numerous lawsuits challenging President Trump’s Feb. 15 declaration, a move to repurpose money allocated by Congress and use it to fund the construction of new barriers along the southern border.
Responding to arguments that an emergency requires some unanticipated crisis — a natural disaster, for example — the Justice Department noted that other presidents have declared emergencies for a variety of long-term problems. It cited examples including President George H.W. Bush’s declaration of an emergency in 1990 to address the proliferation of nuclear and chemical weapons.
The Justice Department also defended the use of military construction funds for the border wall when, in an emergency, it is “necessary to support” use of the armed forces, and argued that the military is in fact deployed along the border.
The House suit filed Friday took issue with that claim. The border wall is not a “military construction project,” it argued.
Each of the eight lawsuits filed so far asserts that nothing resembling an emergency exists at the border, that the situation there is instead a long-running problem.
The complaint filed by the House charged that Trump’s version of an “emergency” was “at odds” with the meaning of the word, noting the president’s own comments when he proclaimed it: “I didn’t need to do this.”
The breadth of the administration’s motions were no surprise to litigants. Often, the government’s first move in such cases is to put forward every plausible reason that the lawsuits should be thrown out, with hopes of avoiding arguments on the merits.
“This isn’t unexpected, but we’re hopeful that the court will allow this case to proceed,” said Brian Segee, a senior attorney at the Center for Biological Diversity, one of the groups suing over the emergency declaration. “Trump’s end run around Congress clearly usurped their appropriation authority. His so-called emergency declaration presents a critical constitutional question.”
The Center for Biological Diversity, the Defenders of Wildlife and the Animal Legal Defense Fund together sued in the U.S. District Court for the District of Columbia. So did Public Citizen’s Litigation Group, on behalf of a group of border residents.
Those suits have been assigned to Judge Trevor McFadden, a Trump appointee. It is unclear whether the House suit will be considered by the same judge.
Other lawsuits are pending in California and Texas.
Any court decisions are at least months away. In an effort to accelerate the process, a coalition of states, including New York, California and Maryland and, separately, the American Civil Liberties Union and the Sierra Club sought preliminary injunctions in California on Thursday to stop any wall-building and shifting of money. Hearings on their requests could come next month.