A Trump national emergency will face immediate legal challenges from Congress

Not happy.
Not happy.
Image: AP Photo/J. Scott Applewhite
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Donald Trump’s plan to declare a national emergency over his border-wall dream faces immediate bipartisan legal challenges from the US Congress.

Members of the House Armed Services Committee, which oversees the Pentagon’s $700-billion annual budget, are among those who have been planning for such a situation and have already mapped out their legal opposition, members of Congress have told Quartz. “We ought to fund border security needs on their own and not be taking it from other accounts,” Mac Thornberry, the committee’s top Republican, said last month.

House speaker Nancy Pelosi, the California Democrat, warned today (Feb. 14) that she would mount a legal challenge to Trump’s promised emergency declaration. She also suggested that such a move by the president would set a dangerous precedent.

US presidents have the right to invoke a “national emergency” that allows them to do everything from seizing property to instituting martial law or taking control of all transportation and communication. They must spell out what federal laws they are invoking to do so.

A lawsuit from the House committee would likely challenge Trump’s right to use defense funds on projects not yet authorized by Congress, given that the proposed wall—and the border situation more generally—has no real link to the military.

“We could see members of Congress file for an injunction, arguing that this is a clear abuse of power,” Sarah E. Turberville, the director of the Constitution Project at the Project on Government Oversight, a nonpartisan government watchdog, told Quartz. “Article I gives the Congress, not the president, the power to appropriate funds,” she said. Any such suit would likely be filed in the District of Columbia Circuit Court, she said.

The chief judge for the DC Circuit Court is Merrick Garland, Barack Obama’s Supreme Court nominee who Senate majority leader Mitch McConnell refused to consider for a vote, costing Democrats a lifetime Supreme Court seat.

In addition to a congressional suit, “we could also see landowners whose property may very well be taken by the government for building the wall also sue as a violation of due process,” Turberville said. There are already dozens of suits filed against the federal government on the US’s southern border related to previous presidents’ barrier building plans.

White House press secretary Sarah Huckabee Sanders said Trump would release more details about the declaration later—a decision first revealed by McConnell—adding that the White House was “very prepared” for any legal challenges. McConnell, a Kentucky Republican,  said Trump would sign the bipartisan spending bill that will avoid another government shutdown—but not give him the $5.7 billion he wanted for his wall plans—and would also declare an emergency.

Congress can also end presidential national emergencies—if both the Houses and Senate agree by simple majority. A president’s veto of Congress’s refusal could be overridden only if there is a two-thirds majority in both chambers.