Legal challenges to Trump emergency declaration face uphill battle

[rooster59]

Legal challenges to Trump emergency declaration face uphill battle

By Alison Frankel and Tom Hals

 

U.S. President Donald Trump and first lady Melania Trump arrive in West Palm Beach, Florida, U.S., February 15, 2019. REUTERS/Kevin Lamarque

 

(Reuters) - Democratic lawmakers, states and others mulling legal challenges to President Donald Trump's national emergency declaration to obtain funds to build a U.S.-Mexico border wall face an uphill and probably losing battle in a showdown likely to be decided by the conservative-majority Supreme Court, legal experts said.

 

After being rebuffed by the U.S. Congress in his request for $5.7 billion to help build the wall that was a signature 2016 campaign promise, Trump on Friday invoked emergency powers given to the president under a 1976 law. The move, according to the White House, enables Trump to bypass lawmakers and redirect money already appropriated by Congress for other purposes and use it for wall construction.

 

Peter Shane, a professor at Ohio State University's Moritz College of Law, said challenges to the emergency declaration could end up as a replay of the legal battle against Trump's travel ban targeting people from several Muslim-majority nations. The Supreme Court last year upheld the travel ban after lower courts had ruled against Trump, with the justices giving the president deference on immigration and national security issues.

 

Trump has painted illegal immigration and drug trafficking across the border as a national security threat.

 

"Courts are reluctant to second-guess the president on matters of national security," Shane said.

 

Democrats, state attorneys general and at least one advocacy group have vowed to take the Republican president to court over the declaration.

 

"I'll sign the final papers as soon as I get into the Oval Office and we'll have a national emergency and then we'll be sued," Trump said at the White House.

 

The National Emergencies Act of 1976 has been invoked dozens of times by presidents without a single successful legal challenge. Congress never defined a national emergency in the law.

 

The legal experts said Trump's declaration could be challenged on at least two fronts: that there is no genuine emergency and that Trump's action overstepped his powers because under the U.S. Constitution Congress has authority over federal appropriations, not the president.

 

Trump made the declaration after asking Congress to appropriate $5.7 billion for wall construction and lawmakers gave him none.

 

The Supreme Court has a 5-4 conservative majority that includes two justices appointed by Trump, Brett Kavanaugh and Neil Gorsuch. Chief Justice John Roberts has emerged as the court's swing vote, and the decision on the legality of Trump's action could come down to him.

 

"The handwriting is on the wall here," said Steven Schwinn, a professor at the John Marshall Law School in Chicago.

"The Supreme Court is almost certain to uphold President Trump's emergency."

 

Legal experts said the 1976 law gives presidents vast discretion. Trump plans to redirect $6.7 billion in federal funds to pay for a wall, money that would come from a U.S. treasury forfeiture fund, a defence counter-drug program and the military construction budget.

 

"The odds favour the president by a significant majority," George Washington University Law School professor Jonathan Turley said. "He has the authority to make the declaration and he has the money."

 

But the administration's defence of Trump's action may not be a smooth ride. Lawsuits could delay the use of funds the president is planning to tap, and legal experts said the bulk of funds may be tied up for years.

 

Trump is running for re-election next year and a loss would mean his presidency ends in January 2021. It is possible the legal fight over the emergency declaration might not be resolved by then.

 

"My guess is the money, the significant amount of money, won't flow before the 2020 election," Harvard Law School professor Mark Tushnet said.

 

Nancy Pelosi, the Democratic speaker of the House of Representatives, and Chuck Schumer, the Republican-led Senate's top Democrat, said Trump actions "clearly violate the Congress's exclusive power of the purse."

 

Congress is unlikely to muster a veto-proof majority to vote down Trump's emergency move. The Democratic-led House could try to sue, but courts generally do not allow Congress to litigate after lawmakers fail to legislate, the legal experts said.

 

States may lead the fight. California Governor Gavin Newsom and state Attorney General Xavier Becerra, both Democrats, said they anticipated they would sue, saying the state would be harmed because Trump's action could drain money from its drug-fighting efforts, endangering its residents.

 

One possible advantage for California is that its case likely could at some point go to the San Francisco-based 9th U.S. Circuit Court of Appeals, which has dealt Trump setbacks on previous policies including the travel ban and potentially could impose or uphold an injunction against the emergency declaration.

 

Legal experts said landowners along the border could sue because they face the imminent threat of land seizure by the federal government to build the wall.

 

Opponents may have more traction arguing that the president is unlawfully trying to tap funds Congress appropriated for the Pentagon, the experts said. The Defense Department construction money that Trump wants has almost never been used for domestic construction. In addition, Congress required the money be spent supporting military operations, and opponents could argue the border wall fails to qualify.

 

-- © Copyright Reuters 2019-02-17

[attrayant]

1 hour ago, rooster59 said:

"Courts are reluctant to second-guess the president on matters of national security," Shane said.

 

They don't need to second-guess.  Trump himself said:

 

"I could do the wall over a longer period of time. I didn't need to do this," Trump told reporters gathered in the White House Rose Garden on Friday, shortly before he signed a proclamation declaring the emergency. "But I'd rather do it much faster."

 

With this statement he has admitted there is no national emergency.  You don't even need to read between the lines - he said it in plain language.

[keemapoot]

2 minutes ago, attrayant said:

 

They don't need to second-guess.  Trump himself said:

 

"I could do the wall over a longer period of time. I didn't need to do this," Trump told reporters gathered in the White House Rose Garden on Friday, shortly before he signed a proclamation declaring the emergency. "But I'd rather do it much faster."

 

With this statement he has admitted there is no national emergency.  You don't even need to read between the lines - he said it in plain language.

True, he's flaunting Presidential power. He knows he has the Executive power to do this, now it will be up the courts to decide if there can be any reasonable throttles on that power. If not, this is getting out of control, and not just with this wacko President, but with any future President. The Executive branch was never meant to have lopsided power, and I think the Supreme Court Justices will agree with me and stop this nonsense and assert their rightful third branch power.

[crees]

President Trump was voted in on what he thought would Make America Great Again. American tax payers agreed with him … Democrats lost and now block anything he does. It seems the voters that pay taxes to set strangers tables are tired and want serious changes. The Democrat Party voted to build the wall when they had control of the country, but now it's a bad idea? 

[Tug]

Let us hope the Supreme Court is loyal to the constitution not Donald even to a lay person such as myself it is clear Donald is over reaching it would be refreshing to see the republicans to put a stop to this clown show 

[attrayant]

10 minutes ago, crees said:

The Democrat Party voted to build the wall when they had control of the country, but now it's a bad idea? 

 

Provide a link to back up that statement.

[wayned]

Yep, the next President will declare an emergency if his eggs are overcooked!

[crees]

9 minutes ago, attrayant said:

 

Provide a link to back up that statement.

The wall in place grew there by itself … or maybe Mexico built it

[Thakkar]

6 minutes ago, wayned said:

Yep, the next President will declare an emergency if his eggs are overcooked!

 

Right after signing the so-called “emmergency”:

 

J.D. Durkin (@jiveDurkey)

2/16/19, 9:35 PM

just in — a source at the Trump International Golf Club in Palm Beach just texted me this photo taken a short time ago.

omelette bar: 

 

 

EGGSECUTIVE TIME indeed!

 

As one wag said, “the real national emergency is that flesh colored outfit he’s wearing”

Edited February 17, 2019 by Thakkar

[keemapoot]

10 minutes ago, Thakkar said:

 

Right after signing the so-called “emmergency”:

 

J.D. Durkin (@jiveDurkey)

2/16/19, 9:35 PM

just in — a source at the Trump International Golf Club in Palm Beach just texted me this photo taken a short time ago.

omelette bar: 

 

 

EGGSECUTIVE TIME indeed!

 

As one wag said, “the real national emergency is that flesh colored outfit he’s wearing”

And, like most of us, he has a portrait or magazine cover blown up on the wall of himself in every room of every building he owns. 

[Kieran00001]

37 minutes ago, crees said:

President Trump was voted in on what he thought would Make America Great Again. American tax payers agreed with him … Democrats lost and now block anything he does. It seems the voters that pay taxes to set strangers tables are tired and want serious changes. The Democrat Party voted to build the wall when they had control of the country, but now it's a bad idea? 

 

Trump had both houses yet still couldn't get anything passed, stop blaming democrats for republicans voting against Trump.

[Kieran00001]

Quote

 

“accumulation of all powers, legislative, executive and judiciary, in the same hands … may justly be pronounced the very definition of tyranny”

 

“violated controlling precedent and abdicated [his] constitutional duty to faithfully execute the law”.

 

“As much as presidents may desire an escape-hatch from Senate confirmation, the constitution does not provide one [...] the separation of powers between the president and Congress protects against the abuse of power [that] is critical to preserving liberty”.

 

 

Above are some quotes from Trumps lawyers expressing why they feel that declaring a national emergency is unconstitutional and an impeachable offense.

 

[sfokevin]

This will fail and Trump knows it!...

He just want this to be the headline and not the Meuller investigation... 

[attrayant]

43 minutes ago, crees said:

The wall in place grew there by itself … or maybe Mexico built it

 

What "wall in place" are you talking about?

[sungod]

The wall is a great idea, should keep all the mass shooters inside the US.

[neeray]

1 hour ago, wayned said:

Yep, the next President will declare an emergency if his eggs are overcooked!

And this one would consider it a national emergency if his KFC wasn't available.

[wwest5829]

1 hour ago, crees said:

President Trump was voted in on what he thought would Make America Great Again. American tax payers agreed with him … Democrats lost and now block anything he does. It seems the voters that pay taxes to set strangers tables are tired and want serious changes. The Democrat Party voted to build the wall when they had control of the country, but now it's a bad idea? 

555 He was voted in by the Electoral College not by the popular vote of those citizens voting. The overwhelming number of voters, voted for other candidates or stayed home and did not vote for him. The historical record stands. He tells me that his progress is greater than others, the economy is stronger, etc. So, Democrats blocking anything? The Republicans have controlled the Executive Branch, and the Legislative Branch for 2 years. And now they have a majority on the Supreme Court (Judicial Branch). Everything is great he says so....

[riclag]

I like the Presidents chances of declaring a emergency in protecting America from illegal crossings etc! It's been a Uphill battle that requires more than 4 years to convince the lawmakers that neglecting the ridiculous loop holes in the immigration laws only is giving incentive for illegal entry etc 

 

[bristolboy]

2 minutes ago, riclag said:

I like the Presidents chances of declaring a emergency in protecting America from illegal crossings etc! It's been a Uphill battle that requires more than 4 years to convince the lawmakers that neglecting the ridiculous loop holes in the immigration laws only is giving incentive for illegal entry etc 

 

Even though Trump has admitted that it's not an emergency?

[riclag]

5 minutes ago, bristolboy said:

Even though Trump has admitted that it's not an emergency?

I stand by my OP

[Chomper Higgot]

The civil cases already being filed will open up ‘Disclosure’ in which Trump will be ordered by the courts to produce the documentation and records that form the basis of him declaring a national emery.

 

That alone will reveal corruption and non constitutional actions by the President.

 

Illiberals, you are not getting your wall.

[riclag]

8 minutes ago, Chomper Higgot said:

The civil cases already being filed will open up ‘Disclosure’ in which Trump will be ordered by the courts to produce the documentation and records that form the basis of him declaring a national emery.

 

That alone will reveal corruption and non constitutional actions by the President.

 

Illiberals, you are not getting your wall.

It already started a long time ago

 

 

[bristolboy]

8 minutes ago, riclag said:

I stand by my OP

Like most other Trump supporters, you have a remarkable ability to not recognize evidence.

[attrayant]

4 minutes ago, riclag said:

It already started a long time ago

 

 

You're repeating a Trump Lie.  The work in that video is being funded with existing $1.6B that was granted by congress two years ago.  They are using FY2018 appropriations because that video was taken in 2018!  These appropriations DO NOT include any funding for Trump's border wall.

 

 

Fact Check: Has construction of Trump's border wall started?

 

You may ave noticed that video shows sections of fencing, but no wall being built.

[riclag]

10 minutes ago, attrayant said:

 

You're repeating a Trump Lie.  The work in that video is being funded with existing $1.6B that was granted by congress two years ago.  They are using FY2018 appropriations because that video was taken in 2018!  These appropriations DO NOT include any funding for Trump's border wall.

 

 

Fact Check: Has construction of Trump's border wall started?

 

You may ave noticed that video shows sections of fencing, but no wall being built.

Sorry! My comment was to "illeberals your not getting your wall" The video from CBS said "The Construction for the  New Wall" has already started according to CBS it was started in April 2018 (20 miles) and will be finished in a couple of months(spring 2019). 

[Kieran00001]

 

10 minutes ago, riclag said:

Sorry! My comment was to "illeberals your not getting your wall" The video from CBS said "The Construction for the  New Wall" has already started according to CBS it was started in April 2018 (20 miles) and will be finished in a couple of months(spring 2019). 

 

That's great, and just what is it that beloved keeps bleating about needing funding to build?

[Chomper Higgot]

34 minutes ago, riclag said:

Sorry! My comment was to "illeberals your not getting your wall" The video from CBS said "The Construction for the  New Wall" has already started according to CBS it was started in April 2018 (20 miles) and will be finished in a couple of months(spring 2019). 

You’re still not getting your wall and Mexico are definitely not paying for the make believe wall you’re being conned with. 

[Scott]

Off-topic posts and replies removed.  

[Redline]

6 hours ago, crees said:

President Trump was voted in on what he thought would Make America Great Again. American tax payers agreed with him … Democrats lost and now block anything he does. It seems the voters that pay taxes to set strangers tables are tired and want serious changes. The Democrat Party voted to build the wall when they had control of the country, but now it's a bad idea? 

The wall the dems well e giving money to were specific sections ????

[Redline]

If this can’t be checked, it is the end of a democratic USA