WASHINGTON – President Donald Trump will declare a national emergency to speed up funding for his proposed wall on the U.S.-Mexico border, but experts say the move would create a legal morass that could take until the middle of next year to resolve.
The White House announced Thursday that Trump will make the move after weeks of threatening to do so. The announcement came as Congress was readying legislation to spend $1.375 billion on the border wall, far less than the $5.7 billion he had long demanded.
Declaring an emergency under the 1976 National Emergency Act would let Trump sidestep Democratic opposition to his demand for more wall funding, but it could draw legal challenges from lawmakers and others who view it as a power grab. Although it could delay construction of his border barriers, an extended legal battle would also give Trump a potent political issue to run on in the 2020 presidential election.
“Everyone’s going to come out of the woodwork,” said Stephen Vladeck, a University of Texas law professor who teaches national security law. “I think we’re going to see an array of lawsuits that actually would all have to be dealt with separately.”
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The potential for an extended legal battle may explain why Trump backed away from the idea last month. The president, who also faced criticism from some Republicans for the idea, had said he wasn’t going to declare an emergency imminently.
Litigation could go all the way to the Supreme Court, which has recently smacked down attempts by both Trump and President Barack Obama to make end runs around Congress. How long that takes would depend on several factors:
• Which programs the White House might try to tap for funding;
• Whether Trump tries to speed the seizure of property from unwilling owners;
• Who could be harmed by the order and would have the right to sue;
• What court or courts are chosen by challengers seeking favorable verdicts.
For weeks, Trump weighed invoking a national emergency as the political impasse over the wall led to a partial government shutdown that became the longest in U.S. history. White House aides previously acknowledged that lawyers were reviewing the potential ramifications.
The president has expressed confidence in the legal strategy. “The law is 100 percent on my side,” he said.
But legal experts differ over how much latitude Trump would have to free up money for the wall on his own. They caution that conservatives who favor an emergency declaration may be trading a deadlock in Congress for a lengthy legal fight the federal judiciary.
Walter Dellinger, a former assistant attorney general and head of the Office of Legal Counsel under President Bill Clinton, said a lawsuit could reach the Supreme Court in a matter of months but likely would not be resolved quickly.
“I think that a clear majority of the Supreme Court will be deeply troubled by the invocation of emergency authority in this case,” Dellinger said. “In the normal course, we might not expect a decision until June of 2020 at the earliest.”
Presidents have broad authority to declare an emergency but are more restricted in how they can use it. White House officials have zeroed in on a provision that would let Trump capture unused money Congress set aside for other purposes.
Experts say that power comes with caveats. The president is supposed to be able to redirect military construction funding only for projects “necessary to support such use of the armed forces.” Trump has ordered troops to the border, but an opponent could challenge whether that deployment is necessary.
“None of these statutes is a blank check,” Vladeck said.
Another question that would have to be decided early in the process: Who has the right to sue? Lawmakers might sue by arguing the president usurped their power through an emergency declaration. Homeowners on the border whose property could be seized to build the wall also might have a case, experts said.
Litigation may turn in part on whether Trump erred in declaring an emergency in the first place. Though the president has described the situation on the border as a “security and humanitarian crisis,” the number of people apprehended attempting to cross the border illegally has fallen considerably over the past decade.
Courts have traditionally given presidents leeway to decide matters of national security.
“There’s just not a lot of guidance in these statutes about what actually constitutes a national emergency,” said Margaret Taylor, senior editor and counsel at the legal blog Lawfare and a former Democratic aide on the Senate Foreign Relations Committee. “Congress and the courts have been deferential to presidents on that decision.”
On the other hand, presidents have faced successful challenges after they took action to sidestep Congress. Obama’s effort to shield from deportation some 5 million immigrants in the country illegally through an executive order faced a high-profile lawsuit from Texas that dragged on for months before the Supreme Court killed the program.
Challengers presumably would bring their lawsuits to district court judges they consider likely to look askance at Trump’s action – a practice known as “forum shopping” that’s used by both liberals and conservatives to improve their chances. Liberals often file cases within the jurisdiction of the U.S. Court of Appeals for the Ninth Circuit, based in California; conservatives often opt for the Fifth Circuit, which includes Texas.
Signaling that he may have learned from the extended legal challenge that for months blocked his travel ban on predominately Muslim countries, Trump predicted opponents might try to bring a challenge to an emergency declaration in the Ninth Circuit.
“What will happen? I’ll be sued. It’ll be brought to the Ninth Circuit. We’ll probably lose there, too,” Trump said. “And then hopefully we’ll win in the Supreme Court.”