Texas landowners file first lawsuit to block Trump’s national emergency declaration

US President Donald Trump talks to the media as he stands with US Border Patrol agents on the banks of the Rio Grande river during his visit to the US-Mexico border in Mission, Texas, on January 10, 2019. (REUTERS/Leah Millis/File Photo)
Updated 16 February 2019
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Texas landowners file first lawsuit to block Trump’s national emergency declaration

  • California and the American Civil Liberties Union are also poised to sue
  • Trump's hopes of overturning any legal challenges may lie in the US Supreme Court

WASHINGTON: Three Texas landowners and an environmental group filed the first lawsuit on Friday challenging President Donald Trump’s national emergency declaration aimed at freeing up billions of dollars to build a wall along the US border with Mexico, the consumer advocacy group Public Citizen said.
The lawsuit, brought in federal court in the District of Columbia, claims the south Texas landowners were told by the US government that it would seek to build a border wall on their properties if money for the project were available in 2019, Public Citizen said in a statement.
Trump declared a national emergency earlier in the day to bypass Congress to use money from the Pentagon and counter drug efforts to fulfill his promise of completing the border wall. The president said immigrants entering the US illegally were invading the country.
The announcement was immediately met with resistance from members of Congress.
House Speaker Nancy Pelosi and several Democratic state attorneys general already have said they might go to court.
California is also likely to sue Trump, the state attorney general said Friday.
The American Civil Liberties Union (ACLU) also announced its intention to sue less than an hour after the White House released the text of Trump’s declaration.

Two main issues
The coming legal fight seems likely to hinge on two main issues: Can the president declare a national emergency to build a border wall in the face of Congress’ refusal to give him all the money he wanted and, under the federal law Trump invoked in his declaration, can the Defense Department take money from some congressionally approved military construction projects to pay for wall construction?
The Pentagon has so far not said which projects might be affected.
But after weeks of publicly ruminating whether to act, Trump’s signature on the declaration set in motion a quick march to the courthouse.
Trump relied on the National Emergencies Act of 1976, which Congress adopted as a way to put some limits on presidential use of national emergencies. The act requires a president to notify Congress publicly of the national emergency and to report every six months. The law also says the president must renew the emergency every year, simply by notifying Congress. The House and Senate also can revoke a declaration by majority vote, though it would take a two-thirds vote by each house to override an expected presidential veto.
Beyond that, though, the law doesn’t say what constitutes a national emergency or impose any other limits on the president.
The broad grant of discretion to the president could make it hard to persuade courts to rule that Trump exceeded his authority in declaring a border emergency. “He’s the one who gets to make the call. We can’t second-guess it,” said John Eastman, a professor of constitutional law at the Chapman University School of Law.
Courts often are reluctant to look beyond the justifications the president included in his proclamation, Ohio State University law professor Peter Shane said on a call organized by the liberal American Constitution Society.
But other legal experts said the facts are powerfully arrayed against the president. They include government statistics showing a decades-long decline in illegal border crossings as well as Trump’s rejection of a deal last year that would have provided more than the nearly $1.4 billion he got for border security in the budget agreement he signed Thursday. Opponents of the declaration also are certain to use Trump’s own words at his Rose Garden news conference Friday to argue that there is no emergency on the border.
“I could do the wall over a longer period of time,” Trump said. “I didn’t need to do this, but I’d rather do it much faster.”

No emergency
California Attorney General Xavier Becerra and Gov. Gavin Newsom, both Democrats, told reporters that there is no emergency at the border and that Trump doesn’t have the authority to make the declaration.
“No one in America is above the law, not even the president of the United States,” Becerra said. “The president does not have power to act frivolously.”
Trump declared a national emergency earlier in the day to bypass Congress to use money from the Pentagon and counter drug efforts to fulfill his promise of completing the border wall. The president said immigrants entering the US illegally were invading the country.
The announcement was immediately met with resistance from members of Congress.
Becerra and Newsom both challenge the notion that there was a true emergency. Becerra said past presidents used such declarations after the Sept. 11 terrorist attacks and the Iran hostage crisis in 1979.
Becerra pointed to Trump’s comments earlier in the day that he did not need to issue the emergency declaration but was doing so to accelerate plans for his border wall. He suggested Trump hopes any legal challenges will ultimately be determined by the US Supreme Court. Republican presidents appointed five of the court’s nine members.
“He knows he will lose in court and that he is hoping to use the US Supreme Court as a tool in his game to fulfill a campaign promise,” Becerra said.
Newsom argued that Trump’s plan to use money on the border wall that had been dedicated for military installations and combating drugs would hurt California.
Newsom on Monday signed an executive order to pull most of California’s 360 National Guard troops from the southern border but said 100 will remain there to help federal officials combating transnational drug crime.
“Interdiction policies we are engaged in that we want to advance in California now are being put at risk because of this political crisis that’s being manufactured,” Newsom said.
Building a wall, he argued, will not stop the flow of illegal drugs that come across ports of entry in vehicles or by other means.
Becerra has filed at least 45 lawsuits against the Trump administration.

Final arbiter
ACLU executive director Anthony Romero said Trump’s remarks are an admission that there is no national emergency. “He just grew impatient and frustrated with Congress,” Romero said in a statement that also said the rights group would file a lawsuit next week.
Trying to turn the president’s words against him failed in the challenge to Trump’s ban on travel to the United States by citizens of several mostly Muslim countries. The ban’s opponents argued that Trump’s comments as a candidate and as president showed the ban was motivated by anti-Muslim bias, not concern about national security. Lower courts struck down the ban, but the Supreme Court upheld it in a 5-4 vote last year.
Trump said he expected to lose in lower courts that he claims have been unfair to him, particularly if lawsuits are filed in California. “Hopefully, we’ll get a fair shake and we’ll win in the Supreme Court, just like the ban,” he said.
Beyond the challenge to Trump’s authority to declare an emergency, lawsuits also are expected to focus on the military construction project law that allows the re-allocation of money in a national emergency.
Eastman said he doubts that the Supreme Court would try to interfere with Trump’s decision to send the military to the border and then authorize the use of money from other Defense Department construction projects to build miles of a border wall. “The president is authorized to make those judgments, not some judge in San Francisco,” Eastman said.
But the ACLU’s suit will argue that Congress allowed for flexibility in using money it appropriated for projects needed to support the emergency use of the military forces, like overseas military airfields in wartime.
Several legal experts said claims that the building of the wall is not the kind of project contemplated in the military construction law could be more difficult to rebut because border security is more like a law enforcement issue than a military emergency.
But Shane, the Ohio State professor, said, “It’s hard to know how exactly this is going to unfold politically or judicially.”


Mike Pompeo urges Moscow to cease ‘unconstructive behavior’ in Venezuela

Updated 43 sec ago
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Mike Pompeo urges Moscow to cease ‘unconstructive behavior’ in Venezuela

WASHINGTON: US Secretary of State Mike Pompeo called on Russia to “cease its unconstructive behavior” by supporting Venezuelan President Nicolas Maduro during a phone call with his Russian counterpart, the State Department said on Monday.
Spokesman Robert Palladino said Pompeo had spoken to Russian Foreign Minister Sergei Lavrov about Venezuela on Monday.
“The secretary told Russian Foreign Minister Lavrov that the United States and regional countries will not stand idly by as Russia exacerbates tensions in Venezuela,” Palladino said in a statement that also condemned Russian military support for the “illegitimate regime of Nicolas Maduro.”