Lawsuits Opposing Trump Border Emergency Pile Up, Lengthy Legal Battle May Loom

Lawsuits by states and rights groups are piling up to challenge President Donald Trump's decision to declare a national emergency to build a wall on the southern border with many signs already indicating the case is likely headed for the Supreme Court

WASHINGTON (UrduPoint News / Sputnik - 20th February, 2019) Lawsuits by states and rights groups are piling up to challenge President Donald Trump's decision to declare a national emergency to build a wall on the southern border with many signs already indicating the case is likely headed for the Supreme Court.

On Tuesday, the American Civil Liberties Union (ACLU) - the same rights group that took the US travel ban case all the way to the Supreme Court - filed a lawsuit challenging Trump's decision to declare a national emergency over the border wall.

The ACLU's highly anticipated move comes on the heels of a lawsuit filed by the attorneys general of California and 15 other states on Monday which seeks an injunction to prevent the president from shifting billions of Dollars from military construction to build the wall without explicit congressional approval.

Last week, Trump signed a national emergency declaration to bypass Congress and free up $8 billion in Federal funding to build a wall on the southern border. The Trump administration aims to divert military funding to install 234 miles' worth of steel barriers along the country's 1,950-mile border with Mexico.

Trump's national emergency will reallocate money from the Pentagon that comes from its military construction and counter-narcotics budgets while the funding from the Treasury comes from its Forfeiture Fund.

While announcing the decision on Friday, Trump acknowledged he was likely to be sued for declaring the national emergency. Trump said that he thinks the administration will be successful in defending the case before the Supreme Court.

The Trump administration faced a similar outbreak of lawsuits when it first rolled out a travel ban that critics referred to as a Muslim ban. The case went all the way to the Supreme Court where justices argued about whether Trump's own tweets and public statements could be used to undermine his executive order.

In January of 2017, Trump first introduced a ban prohibiting entry of foreign nationals from seven Muslim majority countries although court challenges forced the administration to modify the ban multiple times. The Supreme Court in June upheld the current version of the executive order, which bars travelers from seven countries including five Muslim majority nations - Iran, Libya, Somalia, Syria, and Yemen - in addition to North Korea and Venezuela.

University of Chicago Law Professor Aziz Huq said in a column for Politico on Tuesday that an eventual Supreme Court ruling on this issue will likely turnout in favor of Trump just as it did for his administration's travel ban issue.

"The Supreme Court's opinion from last year can be applied point for point to the statutory and constitutional arguments against the wall emergency proclamation," Huq said as quoted by Politico. "The expected result is that the president prevails. The Kavanaugh confirmation only makes this more likely given the new justice's record of voting in favor of expansive presidential powers."

However, Huq points out some hurdles Trump may face throughout the legal process.

Trump, when reallocating federal spending from the Pentagon for the wall will have to under the statute of the law explain that the wall is necessary to support the US armed forces, which will not be easy to show, Huq said.

In addition, Huq said Trump's own administration may undermine his national emergency. He points out that current data from the Department of Homeland Security shows that there has been an 80 percent drop in apprehensions by US Customs and Border Protection (CBP) along the southern border since 2000. He also mentions that the number of families arriving at the border has also declined since 2018.

Furthermore, California Attorney General Xavier Becerra in an interview with CNN on Monday said Trump may have delivered a self-inflicted wound to himself when he said, "I didn't need to do this, but I'd rather do it much faster."

Huq, however, dismissed the notion that Trump's public remarks can be successfully used against him based on the travel ban.

"If the policy's challengers point to the president's own statements on Friday, or his own past conduct in the context of budget negotiations to show that there is no border emergency, or that the real motive at work is to fulfill a campaign promise with 2020 in mind, the court would then remind them, again quoting the travel ban decision, that it is not 'the statements of a particular president,' but rather 'the authority of the presidency itself' that is at issue," Huq said.

Others have pointed to the fact that Trump's border emergency is now one of 32 active national emergencies that cover a broad number of security topics. Some could point to emergencies declared in the past that are even less relevant to US national security concerns.

For example, the Obama administration declared a national emergency in 2011, which has been modified and renewed every year since and is still active, over concerns that Libyan leader Muammar Gaddafi's family might divert the country's assets.

One might be hard pressed to explain how the possibility that Gaddafi's relatives might divert Libya's resources is a threat sufficient enough to declare a national emergency while illegal immigration is not.

THE CASE AGAINST TRUMP'S EMERGENCY

The American Civil Liberties Union (ACLU) said in a statement on Friday that it will argue against Trump's use of emergency powers by stating it cannot be used to build a border wall, especially if funding is being redirected from the Pentagon.

"Congress restricted the use of that power to military construction projects, like overseas military airfields in wartime, that 'are necessary to support' the emergency use of armed forces," the ACLU said in the press release.

On Tuesday, the ACLU filed the lawsuit in the Northern District of California on behalf of the Sierra Club and the Southern Border Communities Coalition. The lawsuit argues that the Trump administration has violated constitutional laws related to separation of powers and environmental matters.

"The lawsuit argues the president's declaration and diversion of funds violates core constitutional principles and multiple laws and statutes, including... the constitutional principle of separation of powers because it usurps Congress's power over spending and ignores Congress's decision to provide only limited funding for construction of a wall along the US-Mexico border," the ACLU said in a statement accompanying the court documents.

The lawsuit also asks the court to declare that the US Secretaries of Defense, Homeland Security, and the Treasury have violated the National Environmental Policy (NEPA) Act by failing to conduct any NEPA analysis on the potential environmental impacts of the border wall project.

Last week other rights groups filed or threatened to file similar lawsuits including the Public Citizen advocacy group and the Border Network for Human Rights (BNHR), which is based in the Texas border town of El Paso.

BNHR said Trump's move will cause irreparable harm to communities at the border.

The New York Times reported on Monday, citing Protect Democracy Executive Director Ian Bassin, that El Paso County is arguing that the national emergency will harm the local economy by potentially scaring away businesses and tourists from investing in the city.

Although Hawaii is thousands of miles from the US southern border, Attorney General Clare Connors said in a press release on Tuesday that they joined the coalition in the legal battle because Trump's declaration directly harms the state by diverting lawfully appropriated funds from the state's drug interdiction programs and military construction budget.

The Center for Biological Diversity, Defenders of Wildlife and Animal Legal Defense Fund said in a joint statement on Saturday they have filed a lawsuit against Trump's national emergency declaration, emphasizing that the construction of border wall will put at risk many species of animals including endangered species.

"This declaration is another illegal attempt to avoid public scrutiny of a massive public project," Animal Legal Defense Fund Executive Director Stephen Wells said in the press release. "Many species of animals, including endangered species, are put at risk by this project, and all alternatives that protect wildlife and the environment must be considered by law. We will continue to pursue all legal avenues to assure the law is upheld."

The Trump administration has argued that a southern border wall is necessary to prevent criminals such as drug smugglers and murderers from pouring into the United States.