EL PASO, TX, Dec. 10, 2019 – Today, a federal court in Texas issued a nationwide injunction blocking the Trump administration from using Department of Defense military construction funds to build a wall along the Southern U.S. border and a declaration that the emergency proclamation was unlawful. The injunction was sought by a bipartisan legal team that includes Protect Democracy on behalf of El Paso County, Texas, and the Border Network for Human Rights in a lawsuit that claimed President Trump’s February national emergency proclamation was illegal and unconstitutional. The order is here.
Today’s order does not implicate July’s Supreme Court decision in Sierra Club v. Trump, which allowed wall construction to proceed under a separate statute. That case did not address the key issue in this case, which is whether the president’s emergency proclamation and expenditure of DOD funds are lawful under the Consolidated Appropriations Act of 2019.
Kristy Parker, Counsel for Protect Democracy, a nonpartisan nonprofit which represented the plaintiffs, said: “The president’s emergency proclamation was a blatant attempt to grab power from Congress. Today’s order affirms that the president is not a king and that our courts are willing to check him when he oversteps his bounds. This is a huge win for democracy and the rule of law.”
Jerry Taylor, President of the Niskanen Center which also represented the plaintiffs, said: “It’s past time for Congress to reassert its role as a check on the Executive Branch. We are pleased with the court’s order, but there is still a need to get to the root of the problem. Hopefully, today’s order will invigorate bipartisan efforts to reform the National Emergencies Act.”
Stuart Gerson, former Acting U.S. Attorney General and co-counsel for the plaintiffs, said: “The U.S. has three branches of government so that no single branch can accrue too much power. We saw that the president was using a national emergency to usurp Congress’s power, and we acted. It’s critical for our democracy that we keep our tripartite system in balance. Without checks and balances, there is no liberty.”
Laurence H. Tribe, Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School and co-counsel for the plaintiffs, said: “It’s important to remember that there are human consequences to allowing the president to abuse his power. The plaintiffs in our case faced serious harm as the result of the president’s power grab. The denigration of democracy has real impacts on real people, and today we’re happy that a court stood up for those people.”
The court ruled in favor of the plaintiffs on October 11, finding that the emergency proclamation – which the Trump administration used to justify the reshuffling of funds for border barrier construction – and expenditures of reprogrammed DOD funds under 10 U.S.C. 2808 were invalid under the Consolidated Appropriations Act. The court based its ruling solely on statutory grounds and did not reach the constitutional claims.
Under the Consolidated Appropriations Act of 2019, Congress appropriated $1.375 billion for border barrier construction. Section 739 of the Act prohibits the administration from increasing that funding beyond what Congress expressly approved. Therefore, the administration’s attempts to use the national emergency proclamation to reprogram military construction funding under 10 U.S.C. 2808 was prohibited because it sought to override Congress’s decision not to fund further border wall construction.
The plaintiffs in this case, as detailed in the complaint, argued that President Trump’s emergency proclamation was an unlawful attempt to override Congress’s constitutional power of the purse. Trump declared the emergency only after months of failed attempts to obtain additional funding for his border wall culminated in the longest U.S. government shutdown in history. He even publicly acknowledged that there was no urgency, saying “I didn’t need to do this, but I’d rather do it much faster.” The administration then moved to transfer $8.1 billion for border wall construction efforts – $6.7 billion more than the $1.375 billion approved by Congress – in an attempt to sidestep Congress’s constitutional role as the appropriator of government money.
The case is notable for its cross-partisan legal team, and for where it was filed. When the president issued the emergency declaration, he predicted that “they will sue us in the Ninth Circuit,” yet this case was brought in the famously conservative Fifth Circuit. Stuart Gerson, one of the counsel for the plaintiffs, says that’s because “This is where our clients were harmed, and it doesn’t take a liberal or a conservative to know that what the president has done would make Madison and Hamilton roll over in their graves. It’s the most foundational aspect of our Constitution that Congress, and not the president, gets to appropriate funds.”
The Trump administration had moved to dismiss the case, contending that while Congress denied the Department of Homeland Security authority to spend more than $1.375 billion on border wall construction, the president has the discretion, including through declaring a national emergency, to reprogram existing funds for those barriers. The administration’s central argument was that the president has unfettered and unreviewable authority to access military construction funds by declaring an “emergency” under the National Emergencies Act.
The administration’s position, had it been accepted, would have significantly weakened Congress’s appropriations power by giving the president power to override appropriations decisions using the National Emergencies Act—unless Congress musters a veto-proof majority to disapprove. It also would have changed the presumption that the executive branch cannot spend money unless Congress specifically approves it, which would force Congress to anticipate and negate loopholes through which the executive branch might seek to spend government money.
Enveloped in this friction between executive and congressional powers were the border communities themselves. The plaintiffs asserted that the emergency declaration harmed them and their community by falsely characterizing the border region and the people who live there – many of whom are immigrants – as dangerous, and by jeopardizing business and tourism opportunities. The emergency declaration also redirected funds away from Fort Bliss, an economic engine in the region, and initiated construction that the majority of the community had opposed through their elected representatives.
This case highlights the danger that political scientists say is inherent in a president using emergency powers to pursue policy objectives. As Protect Democracy advisers and authors of “How Democracies Die,” Daniel Ziblatt and Steven Levitsky, warned 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.”
The legal team includes Protect Democracy; the Niskanen Center, a center-right policy think tank; former Acting U.S. Attorney General Stuart Gerson, a top aide to President George H.W. Bush and founding member of the conservative nonprofit Checks and Balances; Harvard Law Professor Laurence Tribe, one of the nation’s leading constitutional law experts who represented Al Gore in Bush v. Gore; and the law firms Willkie Farr & Gallagher LLP and O’Melveny & Myers LLP.
For more information about the case, visit EndTheEmergency.org
The ruling and other case documents can be found at protectdemocracy.org/national-emergency-declaration/case-documents-national-emergency
Protect Democracy is a nonpartisan nonprofit organization dedicated to preventing American democracy from declining into a more authoritarian form of government.