Just the Facts

Five Facts on the Lawsuits Challenging President Trump’s Emergency Declaration

By Emma Petasis
February 20, 2019 | Blog

Here are five facts on the lawsuits opposing President Trump’s Emergency Declaration. 

The National Emergencies Act (NEA) of 1976 gives the president the authority to expand his or her executive powers by declaring a national emergency.

The NEA was originally intended to enhance the president’s executive authority in order to allow him or her to respond quickly in the event of a crisis. While the NEA does not provide any specific authority on its own, it allows the president to quickly activate expanded executive authorities that are stipulated in other federal statutes. The expanded authorities which the president wishes to enact and the justification for their enactment must be identified and immediately transmitted to Congress. 

On February 15, President Trump announced that he would declare a national emergency at the southern border to secure funds for a border wall.

Following months of speculation, President Trump made the decision to declare a national emergency after Congress passed a bipartisan spending bill that fell far short of allocating the president’s requested $5.7 billion for a wall.  The declaration allows President Trump to divert previously budgeted federal dollars to building a wall, including $3.6 billion budgeted for military construction projects, $2.5 billion for counter-narcotics programs, and $600 million from a Treasury Department asset forfeiture fund. When combined with the $1.375 billion authorized by Congress on Thursday, President Trump will have approximately $8 billion to put toward one of his signature campaign promises.     

Sixteen states have announced that they will sue to stop President Trump’s use of emergency powers to build a border wall. 

Led by California and New York, the group of states filed a suit in Federal District Court in San Francisco, arguing that the president’s decision to declare a national emergency is unconstitutional. The lawsuit seeks a preliminary injunction that would bar the Trump Administration from acting on the president’s national emergency declaration while the case is considered by the courts. At the heart of the case is the claim that President Trump overstepped his constitutional authority by violating the “fundamental separation of powers principles engrained in the United States Constitution.” Of the 16 states involved in the suit all but one – Maryland — have Democratic governors.    

Nonprofit organizations and individual citizens have also begun filng lawsuits against the emergency declaration.

Public Citizen, a nonprofit group, has already filed a suit in the U.S. District Court for the District of Columbia on behalf of a 15-acre nature preserve and three landowners in Texas whose property would be affected by the building of a wall. In addition, the Center for Biological Diversity, Defenders of Wildlife and Animal Legal Defense Fund filed a joint lawsuit arguing that a wall would endanger wildlife along the border. The organization Citizens for Responsibility and Ethics in Washington (CREW) sued the Department of Justice, arguing that it had failed to provide certain documents, such as legal opinions, related to the declaration. 

President Trump has expressed confidence that he will win the lawsuits. 

On Tuesday, the president insisted that he had the “absolute right” to declare an emergency and that he was being challenged by “Open Border Democrats and the Radical Left.” However, several prominent Republicans have publicly expressed concern about the emergency declaration. In a statement, Sen. Thom Tillis (R-NC) warned that the president’s declaration could set a precedent for future presidents to declare national emergencies in order to sidestep Congress and enact their preferred policies.

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