16 States Sue to Stop Trump’s Use of Emergency Powers to Build Border Wall

A coalition of 16 states, including California and New York, on Monday, February 18th challenged President Trump in court over his plan to use emergency powers to spend billions of dollars on his border wall.

The lawsuit is part of a constitutional confrontation that Mr. Trump set off on Friday when he declared that he would spend billions of dollars more on border barriers than Congress had granted him. The clash raises questions over congressional control of spending, the scope of emergency powers granted to the president, and how far the courts are willing to go to settle such a dispute.

The suit, filed in Federal District Court in San Francisco, argues that the president does not have the power to divert funds for constructing a wall along the Mexican border because it is Congress that controls spending.

Xavier Becerra, the attorney general of California, said in an interview that the president himself had undercut his argument that there was an emergency on the border. “Probably the best evidence is the president’s own words,” he said, referring to Mr. Trump’s speech on Feb. 15 announcing his plan: “I didn’t need to do this, but I’d rather do it much faster.”

The lawsuit, California et al. v. Trump et al., says that the plaintiff states are going to court to protect their residents, natural resources and economic interests. “Contrary to the will of Congress, the president has used the pretext of a manufactured ‘crisis’ of unlawful immigration to declare a national emergency and redirect federal dollars appropriated for drug interdiction, military construction and law enforcement initiatives toward building a wall on the United States-Mexico border,” the lawsuit says.

Congress is on its own separate track to challenge the president’s declaration. The House of Representatives, now controlled by Democrats, may take a two-prong approach when it returns from a recess. One would be to bring a lawsuit of its own.

Lawmakers could also vote to override the declaration that an emergency exists, but it is doubtful that Congress has the votes to override Mr. Trump’s certain veto, leaving the courts a more likely venue.

Joining California and New York are Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon and Virginia. All have Democratic governors but one — Maryland, whose attorney general is a Democrat — and most have legislatures controlled by Democrats.

The dispute stems from steps Mr. Trump said he would take after lawmakers granted him only $1.375 billion for new border barriers, legislation he signed last week to avoid another government shutdown.

Mr. Trump asserted the power to tap three additional pots of money on his own: $600 million from a Treasury Department asset forfeiture fund for law enforcement priorities; about $2.5 billion from a military antidrug account, most of which would first be siphoned from other military programs the Pentagon has yet to identify; and $3.6 billion in military construction funds he said he could redirect by invoking an emergency-powers statute.

Presidents have invoked emergency-powers statutes nearly five dozen times since Congress enacted the National Emergencies Act of 1976, but never before has one been used to make an end-run around Congress after it rejected funding for a particular policy.

But as the debate over Mr. Trump’s action shifts to courtrooms, legal experts warned that its fate may turn less on such high constitutional principle and more on complex legal issues — from whether plaintiffs can establish that the case is properly before the courts, to how to interpret several statutes.

“Even though Trump’s political maneuver to get around an uncooperative Congress looks like it stretches the Constitution, the questions presented in court will raise ordinary and complicated issues of administrative law,” said Peter M. Shane, an Ohio State University law professor and co-author of a separation-of-powers casebook.

Many critics have challenged whether an emergency truly exists on the Southern border that a wall would solve, pointing to government data showing that the number of people crossing illegally has dropped significantly over the past generation and that most drugs are smuggled through ports of entry.

The president has argued, without proof, that the emergency declaration is warranted because the migrants “invading” the United States across the Mexico border have caused epidemics of crime and drug use.

Legal specialists expected the Justice Department to urge a court not to consider facts about the border or Mr. Trump’s words, but rather to defer to the president’s decision. The courts have a long history of being reluctant to substitute their own judgment for the president’s about a security threat.

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