No sooner had President Trump announced that he was declaring a national emergency to secure billions in unspent funds to build a border wall than he began outlining the legal battle he expected the measure to face.
“I’ll sign the final papers as soon as I get into the Oval Office. And we will have a national emergency, and we will then be sued,” Trump said in a sing-song cadence, speaking from the White House Rose Garden on Friday. “And they will sue us in the Ninth Circuit, even though it shouldn’t be there, and we will possibly get a bad ruling, and then we’ll get another bad ruling, and then we’ll end up in the Supreme Court, and hopefully we’ll get a fair shake and we’ll win in the Supreme Court.”
So on Monday, when a coalition of 16 states from across the country took to the federal district court in San Francisco to file a lawsuit challenging the president’s actions, Trump couldn’t help but tweet an “I told you so.”
As I predicted, 16 states, led mostly by Open Border Democrats and the Radical Left, have filed a lawsuit in, of course, the 9th Circuit! California, the state that has wasted billions of dollars on their out of control Fast Train, with no hope of completion, seems in charge!
— Donald J. Trump (@realDonaldTrump) February 19, 2019
The lawsuit, led by California Attorney General Xavier Becerra, may be the first submitted in a court that falls under the jurisdiction of the U.S. Court of Appeals for the Ninth Circuit, but it is hardly the first legal challenge submitted in response to Trump’s national emergency, nor is it likely to be the last.
Within hours of Trump’s announcement on Friday, the left-leaning group Public Citizen filed a lawsuit on behalf of the Texas-based Frontera Audubon Society and three individual landowners in South Texas whose properties have been identified by the federal government as the site of future border wall construction.
The following day, another suit was filed by the Center for Biological Diversity, Defenders of Wildlife and Animal Legal Defense Fund. Unlike the case brought by the states in California District Court, these cases were filed in the U.S. District Court for the District of Columbia.
On Tuesday evening, the Sierra Club joined forces with the American Civil Liberties Union, which has led the charge in challenging the Trump administration’s immigration policies in federal court, to file yet another lawsuit over the emergency declaration, this time at the U.S. District Court in Oakland.
All four sets of plaintiffs are seeking preliminary injunctions to block construction while the cases are heard.
Additional lawsuits will likely be filed in the coming days, including one by the nonprofit group Protect Democracy. Ahead of Trump’s official declaration last week, Protect Democracy, along with the Niskanen Center, a D.C. think tank that advocates for environmentalism and immigration reform, announced that they had already prepared a lawsuit on behalf of El Paso County and the Border Network for Human Rights. A spokesperson for the group confirmed to Yahoo News Tuesday that they expect to file their suit imminently.
It’s unclear in which court these and any future cases will be filed. But all are likely to make some variation of the same argument: Trump illegally invoked presidential emergency powers to circumvent congressional budget authority to pay for a border wall that Congress has not voted to fund.
In an interview with the New York Times, Becerra, the California attorney general, indicated that he plans to argue, using comments made by Trump during the Rose Garden announcement Friday, that the “emergency” was specious. “I didn’t need to do this,” Trump said, “but I’d rather do it much faster.”
“Probably the best evidence is the president’s own words,” said Becerra.
But it could be an uphill battle, as the National Emergencies Act offers no explicit definition or required conditions that must be met for the president to declare a crisis. As the Washington Post has pointed out, lawsuits over a president’s national emergency declaration have historically been rare and, with one exception, have generally failed.
Legal analysts say another hurdle for the plaintiffs is to show they have “standing” to sue, which requires them to identify how Trump’s actions could harm them. That is relatively straightforward for landowners or advocates for communities and wildlife in areas along the southwest border, where the wall is supposed to be built. But of the 16 states named in the suit filed Monday, only two — California and New Mexico — share a border with Mexico. The others, all of which except Maryland have Democratic governors, include Hawaii, Oregon, Illinois, Minnesota, New York and Virginia.
Based on the complaint, the suit seeks to argue that Trump’s unilateral redirection of federal funds for his border wall will have harmful economic impact on these states regardless of their proximity to the border.
“Plaintiff States collectively stand to lose millions in federal funding that their National Guard units receive for domestic drug interdiction and counter-drug activities, and millions of dollars received on an annual basis for law enforcement programs from the Treasury Forfeiture Fund, harming the public safety of Plaintiff States,” the complaint reads.
Another route to blocking the declaration runs through Congress, which can pass a resolution to overturn it, a option leading Democrats in the House have floated. But it would also have to pass the Republican-controlled Senate, and could be vetoed by the president, requiring a two-thirds majority in both houses to overturn — a very high hurdle.
The federal courts, including those under the Ninth Circuit, have been a thorn in Trump’s side since the start of his presidency. Advocacy groups such as the ACLU and others have successfully called on judges to block the implementation of several of Trump’s immigration policies, from the first iteration of the travel ban to the termination of DACA and Temporary Protected Status for several countries, to a policy severely restricting access to asylum for people who enter the country at the southwest border. While the courts, especially the Ninth Circuit, are often maligned by Trump as hotbeds of Democratic activism, some of the decisions that went against him were by judges appointed by Republican presidents. It was Judge Dana Sabraw, a George W. Bush appointee to the Ninth Circuit, who ordered the government to promptly track down and reunite thousands of parents and children it had forcibly separated under the administration’s zero-tolerance policy.
In his own stream-of-consciousness analysis of how this will all play out, Trump expressed hope that he would ultimately be victorious if given the chance to defend his emergency declaration at the Supreme Court, noting the high court’s favorable ruling in the travel ban case.
“I think what will happen is, sadly we’ll be sued, and sadly it’ll go through a process and happily we’ll win, I think,” he said Friday.
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