The Democratic states fighting President Trump’s emergency declaration face a rough road as they try to convince the courts that his order was unlawful.
But experts say the lawsuit won’t be a slam dunk for the president either.
“This is a hard case,” said Michael McConnell, director of the Constitutional Law Center at Stanford Law School. “It’s going to be a hard case for California to win and a hard case for Trump to defend.”
{mosads}California is leading the coalition of 16 states suing Trump over an emergency declaration they argue was manufactured by a president who didn’t get what he wanted from Congress.
Trump issued the order Friday, a day after lawmakers on Capitol Hill agreed to allocate $1.375 billion in federal funds for constructing a barrier along portions of the U.S.-Mexico border, a fraction of the $5.7 billion he had demanded for a wall.
“I could do the wall over a longer period of time,” Trump said during the press conference in the Rose Garden. “I didn’t need to do this. But I’d rather do it much faster.”
The states suing Trump point to that statement as proof that there is no emergency at the border. But that line of argument might not matter, according to some legal experts.
Harvard Law School professor Cass Sunstein wrote in a Bloomberg opinion piece last week that courts are not likely to rule that the national emergency is unlawful, even if Trump’s own statements and actions, as well as facts, do not support his declaration.
That’s because under the National Emergencies Act of 1976, Congress gave the president broad power to determine what constitutes a national emergency.
{mossecondads}“It’s an emergency under federal law because Trump said it is,” said Jonathan Turley, a George Washington University professor of law and contributor to The Hill. “The National Emergencies Act has one conspicuous omission: It doesn’t define what an emergency is.”
And since Congress gave itself the power to overturn a declaration — by passing a resolution with a simple majority that would require a two-thirds majority to override a veto — the courts may decide the dispute is not for them to decide.
If they agree to intervene, McConnell said, they may have to look at how the statute has been interpreted by previous presidents.
“People might not like Trump for a variety of reasons, but that doesn’t mean that there’s a different standard for an emergency for him than any other president,” he said.
Some experts say the circumstances this time around are different.
Chris Edelson, a government professor at American University and author of “Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror,” told The New York Times that no president has ever invoked emergency powers to obtain funding that Congress denied.
Even if the president has the authority to issue the declaration, opponents can argue that he is prohibited from building a wall with money that was designated by Congress for the military or the states.
Under the declaration, Trump plans to take $3.6. billion from military construction projects, $2.5 billion from funding the Defense Department uses to support counter-drug activities in the states and $601 million from the Treasury Forfeiture Fund, which is used to support state law enforcement programs.
Turley said it will be hard for the 16 states to successfully argue that it’s unlawful for the president to pull funds from each of those areas for the purposes of building a wall.
“The president has identified as much as $8 billion in available funds,” Turley said. “Even if the challenge cuts that in half it’s almost the amount the president asked for originally.”
New Mexico Attorney General Hector Balderas Jr. (D) argues the president cannot create a fake emergency to take money from the Pentagon and that the Constitution requires congressional approval before a president can move money around that way.
“He has to operate as a president loyal to the Constitution and not as a king,” Balderas said in an interview with The Hill on Wednesday.
A day earlier, Trump expressed confidence about defending his declaration in court, calling it an open and closed case.
“I think we’ll do very well,” he said in the Oval Office. “I have the absolute right to call a national emergency.”
Legal scholars say a challenge of this type would ordinarily take between 16 and 24 months to make its way through the courts.
“The odds of Trump prevailing at the Supreme Court are quite high,” Turley said. “That would mean the Democrats may be handing the president a major victory in court right before the voters go to the polls in 2020.”
But the states challenging the executive action have at least one advantage: They aren’t alone. Several groups have filed legal actions to stop the administration from redirecting funding for a border wall.
In addition to the states’ lawsuit, the American Civil Liberties Union has also filed a challenge in the U.S. District Court for the Northern District of California. Public Citizen and the Center for Biological Diversity filed separate suits in the U.S. District Court for the District of Columbia.
McConnell, of Stanford Law, said that puts the odds in favor of the challengers.
“All they have to find is one court to issue an injunction, whereas the administration has to win every one,” he said.