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3 legal arguments that could challenge Trump’s national emergency

President Donald Trump on Friday declared a national emergency at the U.S.-Mexico border, paving the way for him to direct billions in government funding to build a border wall.

The declaration follows a months-long fight in Congress over Trump’s border security demands, which spurred the longest government shutdown in U.S. history. Trump avoided a second shutdown by signing a border security and funding bill Friday that included $1.375 billion for new barriers, but no funding for a wall. The figure was much lower than what the president originally sought for one of his signature campaign promises.

By declaring a national emergency to access more funding, Trump chose to sidestep Congress and face what could be a long legal battle over executive authority.

How national emergency declarations work

Trump has the authority to declare a national emergency under the National Emergencies Act, which was passed in 1976.

In the declaration released Friday by the White House, the president invoked the military construction statute, which would allow for an additional $3.6 billion in funds to be diverted for the wall. Additionally, he invoked a statute that allows for military members to be ordered to active duty during times of an emergency.

This is not the first time a president has invoked a national emergency. In the 43 years since the National Emergencies Act became law, 58 declarations have been issued, and 31 remain in effect.

A joint resolution by Congress could end the declaration

Trump went around the legislative branch in declaring an emergency, but Congress could pass a joint resolution to end it — though it would require a supermajority to override a presidential veto.

Regardless of whether that’s likely to occur, Liza Goitein, co-director of the Liberty & National Security Program with the Brennan Center for Justice, said she believes it is important for members of Congress to go on the record. “This is a defining moment in our democracy in terms of whether Congress is willing to stand up for the Constitution or separation of powers, or whether parties in Congress are willing to trade away Congress’ constitutional authority for political purposes.”

If Congress doesn’t take definitive action, there are some likely legal arguments you can expect to hear in the coming days.

Does the situation at the border constitute an “emergency”?

Opponents of the emergency declaration, including groups like Public Citizen, said they plan to center their legal challenges around the question of whether or not the current situation at the border actually constitutes an emergency.

“The word ‘emergency’ has to have some meaning. If it has almost any meaning that corresponds to a common understanding of an emergency, the situation at the border is not one,” said Robert Weissman, the president of Public Citizen.

In recent months Trump has repeatedly referred to the situation at the border as a humanitarian and national security crisis. In the declaration, he referred to the “sharp increases in the number of family units entering and seeking entry to the United States” as one reason to justify declaring an emergency at the border.

But federal government data shows apprehensions of unauthorized immigrants along the southern border are on a decline, after hitting a 46-year low in 2017. And critics have argued for months that the Trump administration should focus instead on treating asylum seekers at the border better and improving conditions at detention facilities.

“The numbers of women and children at the border are irrelevant, because they are seeking legal entry to the country. The crisis there is that the president refuses to let them in,” said Weissman.

In declaring their intent to challenge the declaration in court, the ACLU echoed a similar concern. “By the president’s very own admission in the Rose Garden, there is no national emergency,” the group said in a statement. “He just grew impatient and frustrated with Congress, and decided to move along his promise for a border wall ‘faster.’”

Opponents might have a strong case in arguing that “the president can’t just say any old thing is a national emergency,” Louis Michael Seidman, a professor at Georgetown Law, said. “It has to, in some sense, be a national emergency.”

Is the national emergency declaration a power grab over Congress?

In addition to questions about whether or not the situation at the border actually constitutes a national emergency, Seidman said groups challenging Trump’s declaration may cite the funding deal, and point out the fact that Congress rejected appropriating more money for new wall construction.

“You have, on one hand, this statute that is quite vague about what constitutes a national emergency, and on the other hand, you have a specific decision by Congress not to build this wall,” said Seidman. “A court might say that the latter trumps the former.”

Opponents could argue specifically that Trump’s declaration violates Article 1 of the Constitution by spending money that Congress has not appropriated, said Goitein.

Goitein said this could represent “a profound constitutional challenge to the legitimacy of this declaration.”
A legal challenge of this nature would likely be unprecedented. Texas Law professor Stephen Vladeck noted that while presidents have declared plenty of national emergencies in the 43 years since the act was passed, none have ever done so “around the wishes of Congress.”

“Congress has spoken, and he’s trying to circumvent that,” said Michael Weissman of Public Citizen.

Does the military construction statute allow for a wall?

Other legal challenges to Trump’s declaration are likely to single out the specific statute that he invoked, which allows the secretary of defense to pursue military construction projects in the state of a national emergency, Vladek noted.

“The fight isn’t going to be the declaration,” said Vladeck, but rather about “the details with regards to which statute is used, and whether those statutes allow for what the president wants to pursue.”

Goitein expressed doubts that the military statute would allow for construction of the wall that Trump is seeking.

“If you look at the caveats in that law, it doesn’t seem it would apply to this. It relates to construction in and around military installations,” she said. “It also makes clear that construction has to be in support of a required use of armed forces rather than the other way around.”

Patty Gorena Morales contributed reporting.