EL PASO, TX, Feb. 20, 2019 – Today, the County of El Paso, Texas and the Border Network for Human Rights filed a lawsuit against President Donald J. Trump in response to his declaration of a national emergency to circumvent Congress to fund his border wall.
In addition to being filed on behalf of the communities on the front line of the President’s attempt to seize powers Congress would not give him, the lawsuit is notable for the coalition of attorneys behind it. The legal team includes: former Acting Attorney General Stuart Gerson, who served as a top aide to President George H.W. Bush; Harvard Law Professor Laurence Tribe, one of the nation’s leading constitutional law experts who represented Al Gore in Bush v. Gore; Protect Democracy, a nonpartisan nonprofit dedicated to preventing the United States from declining into a more authoritarian form of government and which includes both liberals and conservatives; the Niskanen Center, a center-right policy think tank; and the law firm Willkie Farr & Gallagher LLP.
The lawsuit seeks an injunction to block the President’s emergency declaration from taking effect. The lawsuit lays out why the President’s actions are not supported by the law, violate numerous provisions of the Constitution and U.S. Code, and have immediately inflicted injuries on El Paso County and the Border Network for Human Rights. The case was filed in the United States District Court for the Western District of Texas in El Paso.
Kristy Parker, Counsel for Protect Democracy said: “Throughout history, autocrats have used so-called emergency powers to seize control from democratic systems that don’t yield to their will. Often, they have invented fake crises for this purpose and we should all be extremely alarmed that President Trump has reached for this tool in the autocrat’s toolkit. Thankfully, our founders also knew that the seizing of legislative powers by the executive was, in the words of James Madison, ‘the very definition of tyranny’ and made it unlawful. It’s unlawful here and we look forward to the courts upholding our framers’ vision.”
David Bookbinder, Chief Counsel for the Niskanen Center said: “America is governed by the rule of law and the separation of powers. President Trump’s declaration of a national emergency would violate both of these. Our lawsuit aims to stop the dangerous precedent this would establish for the presidency and the immediate harm it would inflict on communities along the border.”
Fernando Garcia, Executive Director of the Border Network for Human Rights, said: “President Trump’s emergency is a manufactured crisis. In his anti-immigrant statements about border crossings, even the President himself has suggested that this is a political hammer rather than a real emergency. The Border Network for Human Rights has worked for years to cultivate the relationships for a safe community. We did not do this by building walls or by criminalizing and persecuting immigrants.”
Ricardo A. Samaniego, El Paso County Judge and presiding official over county government, said: “El Paso County is one of the safest communities in the United States. President Trump has already made many negative and false statements about our community in the attempt to justify his border wall. He has never reached out to the leadership of our community to determine if this is actually an emergency. This threatened emergency declaration will further damage El Paso County’s reputation and economy, and we are determined to stop this from happening.”
Stuart M. Gerson, Former Assistant Attorney General to President George H.W. Bush, Acting Attorney General of the United States, and co-counsel for Plaintiffs, said: “Any reasonable notion of the constitutionally fundamental separation of powers must be held to carry with it a necessary limitation on the power of the Executive. A state of emergency is something that should describe an objectively demonstrable exigency that time doesn’t allow for inter-branch resolution, not merely a bothersome situation that not only has persisted for years but is diminishing, and which actually has been the subject of congressional action. The current case is one in which the President is defying Congress, the type of case that Justice Jackson, concurring in the famous Youngstown steel seizure case, usefully put in the category of justiciable disputes in which the power of the Executive can and should be restrained. And, turning to the substance of what the President is attempting with respect to redirecting a significant portion of the defense budget, it would appear that doing so needlessly in the name of national defense ironically would, in fact, weaken the national defense.”
Laurence H. Tribe, Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School, and co-counsel for Plaintiffs, said: “The injunction requested by the county of El Paso and the Border Network for Human Rights is amply justified by the complaint filed today. President Trump’s effort to usurp Congress’s powers and abuse the U.S. Military manifestly subverts the Constitution and inflicts grievous harm on the 800,000 residents of a successful community that the President has shamelessly used as a poster child for his political posturing. As the complaint explains, the statutory and constitutional violations that the president has engaged in – despite his own remarkable admission that he did not need to do so – will inflict irreparable harm unless stopped immediately – before they can cause still more damage to a proud and thriving group of people.”
In early January, the President threatened to declare a national emergency if Congress did not allocate border wall funding. He has now carried out this threat, which would usurp the constitutional authority granted to Congress to pass laws and appropriate government funds, even though he admitted he “didn’t need to do [it].” It is inconsistent with the U.S. Constitution’s separation of powers, the various statutes the President has invoked, the President’s own oath to “take care that the laws be faithfully executed,” and threatens our representative democracy.
The President’s declaration of an “emergency” at the Southern border that includes El Paso County, and the proclamation’s militarization of the Southern border to construct additional miles of unauthorized border walls and barriers, causes injury to the Border Network for Human Rights and the County of El Paso, Texas.
Moreover, in the lead up to signing his emergency proclamation, the President has repeatedly slandered and demonized border and Latino immigrant communities as sources of crime, drugs, and violence. These actions have inflicted harm not only on the plaintiffs in this case, but on immigrant communities and communities of color throughout the United States.
Beyond the inaccuracy and unlawfulness of the President’s action and the injury it inflicts upon the these communities and the plaintiffs here, it also poses a profound danger to the American people and our system of constitutional governance. As Protect Democracy advisers and the Harvard professors who authored the book “How Democracies Die,” Daniel Ziblatt and Steven Levitsky, warned recently in The New York Times, “National emergencies can threaten the constitutional balance even under democratically minded presidents like Abraham Lincoln and Franklin Roosevelt. But they can be fatal under would-be autocrats . . . Crises present such great opportunities for concentrating power that would-be autocrats often manufacture them . . . . [T]hese developments should set off alarm bells. Our president is behaving like an autocrat.”
What experts are saying:
Donald Ayer (Former Deputy Attorney General to President George H.W. Bush): “The President’s emergency declaration is an obvious end run around Congress’s repeated refusal to appropriate funds for a border wall. Without any emergency, it is a gross abuse of our system of representative government. This lawsuit and action by Congress under the National Emergency Act are critical steps now to stop an insistent bully from running roughshod over our democratic system.”
David French (Attorney and Journalist): “The stakes are particularly high if the President defies Congress and invokes ‘national security’ to get his border wall. It would be a blatant abuse of power. As it becomes more and more clear that the President will not police his own power, our democracy depends on the courts fulfilling their constitutional role.”
Ilya Somin (Professor of Law, George Mason University): “The President’s attempt to use emergency powers to build his border wall is illegal, and a threat to both separation of powers and the property rights of large numbers of Americans. If he succeeds, it would set a dangerous precedent. Future presidents, too, could use dubious supposed ‘emergencies’ to raid the treasury and seize private property.”
Linda Chavez (Chairman, Center for Equal Opportunity, Columnist, and Former White House Director of Public Liaison to President Ronald Reagan): “President Trump’s decision to declare a national emergency in order to build an unnecessary wall at our southern border is a naked display of his contempt for the separation of powers. He flouts the Constitution on a whim and rejects the normal political process when he doesn’t get his way.”
Steven Levitsky (Professor of Government, Harvard University, Co-Author of How Democracies Die): “It is essential in a democracy that politicians know how to lose. President Bill Clinton devoted the first two years of his administration to a universal health insurance bill only to see it die in Congress. President George W. Bush claimed a mandate to reform Social Security after his 2004 re-election, but the initiative went nowhere. All presidents suffer such defeats. All presidents must, therefore, be able to lose. With his declaration of a “national emergency,” President Trump has demonstrated once again that he is unwilling to lose—a trait one normally sees in autocrats. Trump’s fabrication of an emergency is similarly taken from the autocrat’s playbook. And the explicit willingness to bypass Congress cuts at the heart of our constitutional system This is Trump’s most autocratic act to date. Republicans must act to stop it. Our democratic institutions are at stake.”
Kim Lane Scheppele (Laurance S. Rockefeller Professor of Sociology and International Affairs, Woodrow Wilson School, Princeton University): “The Constitution gives the power of appropriation to the Congress and the President therefore cannot just raid the budget to pay for projects that the Congress has refused to approve. The courts need to set limits to the extraordinary emergency powers any president can invoke when the Congress has told him ‘no.’”
Evan Wolfson (Constitutional Legal Expert and Founder, Freedom to Marry): “Americans elect a president, not a king. Trump’s attempt to rule by decree in defiance of the Constitution is the actual national emergency, and if Congress won’t stop it, the courts must.”
Ruth Ben-Ghiat (Professor of Italian and History, New York University): “President Trump’s declaration of a national emergency is a perfect example of his authoritarian tendencies. It is fruit of manipulated opinion about the supposed security threat at the border and an intention to get what he wants (the wall) at any cost.”
Mindy Finn (Co-CEO and Founder, Stand Up Republic): “Separation of powers with three co-equal branches of government was a brilliant, foundational, governance decision for our nation. No matter ones partisan proclivities, the erosion of that balance in favor of unbridled executive power should alarm them.”
Yascha Mounk (Author of The People vs Democracy: Why Our Freedom Is In Danger and How To Save It, Senior Adviser to Protect Democracy): “The President’s declaration of a state of national emergency is the most serious violation of the separation of powers he has so far committed, and it is hard to imagine a clearer piece of evidence that he is seeking unconstitutional powers. If Trump’s past attacks on the legislature and the judiciary have, at times, felt like a drill, his intention to arrogate vast powers to himself under an utterly transparent pretext is the real deal.”
John McKay (Former U.S. Attorney who has taught Constitutional Law at Seattle University and Chairs Government Investigations for Davis Wright Tremaine): “President Trump’s claim that he will declare a national emergency and unilaterally reprogram federal funding to his border wall with Mexico would clearly exceed his constitutional authority. Not since Truman’s ill-advised seizure of the steel industry have we seen such a naked abuse of Executive Branch authority. Congress and ultimately the courts must stand firm against despotic behavior and this nearly unprecedented contempt for the rule of law.”
Michael Miller (Associate Professor of Political Science, The George Washington University): “President Trump’s action is an abuse of power that does grave damage to the rule of law and the health of our democracy. An executive’s unilateral declaration of “emergency powers” after failing to pass legislation has preceded democratic breakdowns in Peru, Argentina, India, Thailand, and elsewhere. For the United States, it presents a further sign of democratic decline engineered by a lawless president.”
George Conway, who at one point was reported to have been under consideration to become President Trump’s Solicitor General, also retweeted news of the lawsuit, with the comment: “And they will win”.
More information about this litigation is available at: https://protectdemocracy.org/national-emergency-declaration/
The complaint can be found at: https://protectdemocracy.org/resource-library/document/el-paso-county-bnhr-v-trump-et-al/
Protect Democracy is a nonpartisan nonprofit organization dedicated to preventing American democracy from declining into a more authoritarian form of government.
The Niskanen Center is a nonpartisan think tank that works to promote an open society: a social order that is open to political, cultural, and social change; open to free inquiry; open to individual autonomy; open to the poor and marginalized; open to commerce and trade; open to people who may wish to come or go; open to different beliefs and cultures; open to the search for truth; and a government that protects these freedoms while advancing the cause of open societies around the world.
The County of El Paso, Texas, with a population of more than 800,000, sits on the Rio Grande directly along the southern U.S. border.
The Border Network for Human Rights is an immigration reform and human rights advocacy organization with a membership of nearly 4000 people in border communities in West Texas and Southern New Mexico.
Stuart M. Gerson is a Member of the Firm Epstein Becker Green. He previously served as Assistant Attorney General for the Civil Division under President George H.W. Bush from 1989 to 1993 and then as Acting Attorney General of the United States. During the 1988 Presidential election, Mr. Gerson was a senior advisor to the campaign of George H.W. Bush. Prior to that, Mr. Gerson was an Assistant U.S. Attorney in Washington, DC, and a counter-intelligence officer in the U.S. Air Force. Most recently, he became a founding member of Checks and Balances.
Laurence H. Tribe is the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard. He was appointed in 2010 by President Obama and Attorney General Holder to serve as the first Senior Counselor for Access to Justice. He was also part of the legal team representing Al Gore in the disputed 2000 presidential election. He has prevailed in three-fifths of the many appellate cases he has argued (including 35 in the U.S. Supreme Court), and has written 115 books and articles, including his treatise, American Constitutional Law, cited more than any other legal text since 1950.
Willkie Farr & Gallagher LLP is an elite international law firm of approximately 700 lawyers located in ten offices in six countries. For more than 125 years, they have represented companies across a wide spectrum of businesses and industries, most notably financial services. The firm comprises attorneys who are recognized as some of the world’s foremost practitioners in their respective areas.