The House has now passed a resolution declaring Trump’s National Emergency Declaration to be unnecessary and invalid. The Senate is expected to also pass the legislation as well. Trump is expected to veto the bill, and the initial votes in the House, and expected votes in the Senate, suggest there are not enough votes to override the veto. We now go to the federal courts where sixteen states and several private environmental groups have filed suit to block the National Emergency Declaration. www.usatoday.com/...
There will be other litigants, including the ACLU, who will also be found to have standing, and will sue to block the use of funds currently allocated to other federal government programs, including military construction, in building additional physical barriers at the southern US border. Trump believes that, like the travel ban, the Supreme Court will eventually determine that he has the right to declare such an emergency, and divert funds from other programs to the wall. While I do not believe that the Court will approve this National Emergency, Chicago Law School’s Aziz Huq outlines in the link below a very informative case, using the logic the Court followed in the travel ban, why the SCOTUS may agree with Trump and his National Emergency:
www.politico.com/...
Nolan Rappaport joins Huq in an article in The Hill, also believing the SCOTUS will approve the National Emergency.
thehill.com/...
Trump has declared this emergency pursuant to the National Emergencies Act, passed by Congress in 1976. The Act has been invoked 59 times. However, the Act has limitations which are outlined here by Brianne Gorod at takecareblog.com/...
“To answer that question, let’s start with the text of the Act. The National Emergencies Act seems to assume that there exists, by some objective measure, a “national emergency,” because it refers to “Acts of Congress [that] authoriz[e] the exercise . . . of any special or extraordinary power” “during the period of a national emergency.” The power the law then gives to the President is the power to “declare such national emergency,” that is, to “make [it] known formally, officially, or explicitly.”
By contrast, the law does not provide that the President may invoke these powers whenever he believes their use would be appropriate. It could have said, for example, that “[w]ith respect to Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to invoke those statutes when he believes appropriate” or “when he believes it is in the national interest.”
Because Trump himself has proclaimed that the border wall project could be completed, over a longer time period using the normal congressional appropriations process, further weakens his case for classifying this project as an “emergency”. In addition, there are no objective facts that can demonstrate evidence of a true emergency, which the Act is intended to provide a response to.
It is in the language of the Act itself where Trump may lose some of the support he is counting on at the Supreme Court. Several of the Justices define themselves, in part, as texualists and it is in the text of the Act that much of Trump’s support may evaporate, led by Justice Neil Gorsuch who’s career on the appellate bench has been characterized by a strong desire to first look very carefully at the language of a statute when making a ruling regarding its constitutionality or validity.
Looking to a different article by Gorod takecareblog.com/...”
“Here, the text of the laws at issue may be a real problem for the President. One of the statutes that the President has invoked provides that “[i]n the event of a . . . declaration by the President of a national emergency in accordance with the National Emergencies Act that requires use of the armed forces, the Secretary of Defense . . . may undertake military construction projects . . . that are necessary to support such use of the armed forces.” Military construction is further defined to mean “construction, development, conversion, or extension of any kind carried out with respect to a military installation, whether to satisfy temporary or permanent requirements, or any acquisition of land or construction of a defense access road.”
It would seem that the use of the National Emergencies Act, and in particular the use of US military construction funds, has a defined meaning where the border wall does not comply. The border wall is not part of a military project or installation. The border is guarded by DHS, not the DoD.
It will certainly be interesting to follow this litigation, and see how the different trial courts, and appellate courts rule on the National Emergency declaration. What we found in the travel ban was that the lower courts didn’t provide us with much guidance with how the Supreme Court eventually ruled. However, as the cases move through the federal court system the documents provided by lawyers for each side will give us a clear view of the legal issues involved.
I think the facts of this case are sufficiently different from the travel ban that the Court will rule that this National Emergency is invalid. The specific language of the National Emergencies Act, and its even more detailed constraints on “military” construction will, in my view, lead to a bipartisan majority on the Court to strike down this attempt by Trump to end run clear congressional intent.