Constitutional fight over Trump border wall begins

Sgt. 1st Class Gordon Hyde

Arguing that President Trump is pushing the nation “toward a constitutional crisis of his own making,” a group of 16 states asked a federal court in California on Monday night to block the federal government from building a wall along the border between the U.S. and Mexico unless Congress explicitly approves money to pay for it.

The sweeping new lawsuit followed two other constitutional challenges to the President’s plans in court cases started over the weekend by landowners, and environmental and wildlife groups with interests in border areas where parts of a wall would be built. Those cases were filed in federal court in Washington, D.C., Friday and Saturday.

All of the lawsuits rely, in part, on the President’s own statement on Friday that he actually did not need to declare a national emergency in order to move ahead with the wall’s construction but chose that method as the fastest way to get the job done.

Meanwhile, Democratic lawmakers in the U.S. House of Representatives drafted a proposed measure to formally disapprove of the President’s declaration of a national emergency, which he did on Friday as a way to justify moving ahead with the border wall without money expressly voted by Congress for that purpose. Such a declaration could force a vote in both houses of Congress to test the members’ views on the controversial wall project. But, if it were enacted, the President could veto it.

There also is some discussion in Congress of new measures to curtail the power that presidents have to declare national emergencies, under a law enacted in 1976 – the legal basis for Trump’s latest plan for a wall that he has been advocating for five years, in private and public life.

The flurry of activity in the courts and in Congress demonstrated vividly how deep the controversy over the President’s wall project has already become. The controversy very likely will wind up in the Supreme Court, with the shape of the issues there depending upon how Congress, the Administration, and the lower courts deal with the challenges now getting under way.

The core constitutional issue in the court cases is whether the President acted unconstitutionally in deciding to move ahead despite the explicit refusal of Congress to approve funds for a wall along the border. The issues in those cases based upon federal laws argued that there is no actual emergency along the border of the kind that justifies a declaration of emergency under the 1976 law, and that there will be violations of federal laws to protect the environment and limiting the power of the president to shift existing federal funds from existing projects to pay for work on the wall.

The 16 states’ lawsuit contended that “the federal government’s own data prove there is no national emergency at the southern border that warrants [the] construction of a wall.” They added that the government’s defiance of Congress’s refusal to provide money for “a vanity project” will not result in any protection of national security but will “cause significant harm to the public safety, public fisc, environment and well-being” of the people living in the 16 states.

Noting that a high-level Administration official had said publicly that construction of the wall will move forward at such speed that people will be “shocked,” the states urged the federal judge to move quickly to act on the challenge.

The states’ case makes these claims based on the Constitution:

  • First, a violation of the constitutional concept that the powers of the federal government are to remain separated, to protect one branch from intruding on the authority assigned to another.
  • Second, a violation of the explicit constitutional provision that no federal money may be spent unless it has been explicitly approved by Congress through the regular legislative process.
  • Third, the President and the federal agencies that will carry out the wall project without congressional approval are acting beyond the powers of their offices.

The states of California and New Mexico – the only two states among the 16 that share the border with Mexico – make these claims based on federal laws:

  • First, a violation of federal environmental protection law for failure to draw up a specific assessment of how the border wall will impact the environment along and near its path – including potential harms to animal and plant life.
  • Second, a violation of the federal law that governs the obligation of federal administrative agencies to obey specific laws, including the duty to protect the environment.

If those violations are found by the court to exist, these are the remedies the states requested:

  • First, a specific conclusion that the President and Executive Branch officials have acted unconstitutionally and in violation of specific federal laws.
  • Second, an order to block any construction on a wall along the border without advance congressional approval of funds specifically for a wall.
  • Third, an order blocking the diversion to the wall project of any funds that Congress had already approved and had earmarked for other projects or programs. (President Trump’s aides have said they plan to pay for wall construction by diverting up to $6.7 billion of existing funds from other programs or projects. In passing a new budget bill last week to avoid a new shutdown of the government because of the border wall dispute, Congress expressly refused to approve any funds for construction of a wall, although it did approve about $1.4 billion for barriers that do not amount to an actual wall.)

President Trump announced his plans to declare a national emergency and use other sources of funds for the wall at a press conference Friday afternoon in the White House Rose Garden. Within hours, the first constitutional lawsuit was filed.

That opening case was submitted to a federal court in Washington, D.C., by the Frontier Audubon Society, a Texas-based advocacy group that seeks to protect bird life, along with three owners of land in south Texas, each of whom has been told by federal officials that their land would be included in the path of the planned wall.

That lawsuit’s claims are similar to those in the 16 states’ case contesting the lack of constitutional authority to declare an emergency and the lack of power under federal law to divert funds to the wall.

On Saturday morning, a second lawsuit was filed in federal court in the nation’s capital, by three advocacy organizations: the Center for Biological Diversity, the Defenders of Wildlife, and the Animal Legal Defense Fund. Their constitutional and statutory claims and their requested remedies are similar to those in the other cases.

The first issue for the courts in each case is to whether any of the challengers had a legal right to sue, based upon whether they could show that they would be harmed by the President’s actions. A considerable part of each of the formal filings is a recitation of harms that the challengers claim will occur.

A second issue will be whether to issue a temporary order to block action on the wall project or the diversion of money pending a full review of the merits of the constitutional and statutory claims.

If the President’s plan is blocked, or if a blocking order is denied, appeals to higher courts would almost certainly follow, even without a final decision on constitutionality or legality.

Lyle Denniston has been writing about the Supreme Court since 1958. 

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