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HomeSpotlight Story | Bird’s Eye View | Budget & Taxes | Politics & Leadership | Governors | Hot Issues | Once Around the Statehouse Lightly
Sixteen states led by California sued President Donald Trump on President’s Day, alleging that his proclamation of a national emergency on the U.S.-Mexican border was unconstitutional.
Trump proclaimed the emergency a week earlier after expressing frustration with Congress for providing only a small fraction of the $5.7 billion he sought for building 230 miles of his long-promised wall on the U.S. southern border. The action was widely denounced as unlawful by Democrats and 10 Republican U.S. senators.
“He is usurping congressional authority,” said Sen. Susan Collins (R-Maine).
The lawsuit, California et al. v. Trump et al., filed in the U.S. District Court in San Francisco, said the plaintiff states were suing “to protect their residents, natural resources, and economic interests from President Donald J. Trump’s flagrant disregard of fundamental separation of powers principles engrained in the United States Constitution.”
“Contrary to the will of Congress, the president has used the pretext of a manufactured ‘crisis’ of unlawful immigration to declare a national emergency and redirect federal dollars appropriated for drug interdiction, military construction and law enforcement initiatives toward building a wall on the United States-Mexico border,” the lawsuit said.
Joining California in the lawsuit were Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon and Virginia.
The suit was filed by the attorneys general of these states. All have Democratic governors except Maryland, whose Republican governor, Larry Hogan, has often taken a bipartisan approach. Democrats also control both chambers of the legislature in these states except for Michigan, Minnesota and Virginia.
Of these states, only California and New Mexico share a border with Mexico, and it’s not certain any of the new fencing sought by Trump will be built in either of these two states. The White House legal team is expected to contend that the states would suffer no specific harm from construction of the wall and therefore lack standing to sue.
Anticipating this argument, California Attorney General Xavier Becerra told the New York Times that the plaintiff states have standing because their residents could “lose funding that they paid for with their tax dollars, money that was destined for drug interdiction or for the Department of Defense for military men and women and military installations.”
In a statement accompanying the lawsuit, Becerra described Trump’s action as “unilaterally robbing taxpayer funds lawfully set aside by Congress.”
The lawsuit by the states is part of a two-pronged attack on Trump’s emergency declaration. The other prong is a congressional resolution of disapproval that Democrats will soon introduce. The resolution is assured passage in the Democratic-controlled House and could pass the GOP-controlled Senate, where 10 Republican senators have spoken out against the declaration.
If this happens, Trump will veto the resolution, said Stephen Miller, a White House aide. It would be Trump’s first veto. Democrats acknowledge it would be difficult to muster the two-thirds majority necessary for a veto override.
That would leave the decision to the courts. In addition to the lawsuit filed by the states, legal actions aimed at overturning the declaration are expected by various advocacy groups including the American Civil Liberties Union. The advocacy group Public Citizen filed the first such lawsuit in the U.S. District Court in Washington on behalf of three Texas landowners and an environmental group.
Proclamations of national emergencies are not rare. Fifty-nine have been declared by presidents under the National Emergency Act of 1976, and 31 of them remain in effect today, going back to an emergency declaration by President Jimmy Carter after U.S. hostages were held captive in the American embassy in Iran.
Most existing emergencies involve foreign countries or foreign nationals. The Trump declaration is the only one to come after Congress passed legislation rejecting a presidential budget request.
“This is plainly a power grab by a disappointed president who has gone outside the bounds of the law to try to get what he failed to achieve in the constitutional legislative process,” said House Speaker Nancy Pelosi of California and Senate Democratic leader Chuck Schumer in a joint statement.
The lawsuit filed by the states is part of a persistent pattern of conflict between Democratic-controlled states and the Trump administration. California alone has filed 46 lawsuits against the Trump administration with mixed results.
Trump won an important victory on Feb. 11, ironically in the often liberal U.S. Ninth Circuit Court of Appeals the president has frequently denounced. The administration plans to rebuild some sections of existing fencing near San Diego without making an environmental assessment. California challenged this, but the court said that the administration has the authority to waive environmental regulations.
This decision could set a precedent for other sensitive environmental considerations involving the border wall.
The courts are not the only arena in which the Trump administration and states have clashed.
Days before Trump’s emergency declaration, the newly installed Democratic governor of New Mexico, Gov. Michelle Lujan Grisham, withdrew most of her state’s National Guard troops from a contingent of 2,300 National Guard forces dispatched to the border by Trump last April. (Trump subsequently sent 5,200 regular U.S. troops to the border just before the midterm elections; about half have been withdrawn.)
Disputing Trump’s claims of a national security crisis. Lujan Grisham said that border towns in New Mexico are among the safest communities in the country. She said she wanted no part of Trump’s “charade of border fearmongering by misusing our diligent National Guard troops.”
Gov. Gavin Newsom, the new Democratic governor of California, followed suit. He withdrew 260 of his state’s 360 National Guard troops on the border. Lujan Grisham is withdrawing all but a dozen of 118 troops. Those that remain are needed to process amnesty requests, she said.
The conflict over the border wall, like so much else in the debate over illegal immigration, is clouded in political semantics. Pelosi has called Trump’s proposed wall “immoral,” but walls, fencing and various barriers already cover one-third of the 1,954-mile-long border between the United States and Mexico.
Some construction began under President Bill Clinton in the early 1990s. President George W. Bush increased the effort in 2006 and President Barack Obama added 130 miles of wall, most of it during his first year in office. Many Democrats, including Sen. Schumer, supported this effort.
Although the information is shrugged off by Trump, data compiled by his administration raises questions about the value of any additional wall construction. Customs and Border Protection (CBP) data shows that unlawful entry of persons from Mexico is at a 45-year low. Dangerous drugs are still a major problem, but CBP data shows that the vast majority of them come through legal ports of entry. Democrats and Republicans generally agree on the need for improved high tech interdiction at these points of entry, although this agreement is pretty much drowned out by the barrage of insults exchanged between Trump and his detractors.
In the legal battle ahead Trump may be haunted by his own words; “I could do the wall over a longer period of time. I didn’t need to do this,” he told reporters gathered in the White House Rose Garden, shortly before he declared the emergency. “But I’d rather do it much faster.”
But these words may not matter. Congress, in passing the National Emergency Act, defined no standards that a president must meet in declaring an emergency. Writing in the Washington Post, attorney Elizabeth Goitein of the liberal Brennan Center for Justice, observed that this Supreme Court has shown “a willingness to defer to Trump on claims of national security.”
However the legal battle is resolved, the sad truth about the emergency declaration is that it’s unnecessary except as a way for Trump to demonstrate that he is keeping a campaign promise.
The administration intends to spend wall construction money in sequence, starting with the $1.375 billion Congress appropriated. It would then tap three additional pots of money: $600 million from a Treasury Department asset forfeiture fund, $2.5 billion from a Department of Defense anti-drug fund and $3.6 billion in military construction funds that Trump would re-direct to the wall.
Trump can legally do all of this except divert the last $3.6 billion without an emergency declaration. The lawsuits are likely to take until 2020 to resolve. So even if Trump wins in the courts, he in all probability will not have diverted the $3.6 billion in military spending by the time his term ends.
And that presumably would be the end of the matter. Unless, of course, Donald Trump is re-elected.
Health care will be a major issue in statehouses this year, from the stability of the Affordable Care Act and Medicaid to state single-payer and prescription drug price proposals. Join us on March 5 as SNCJ Managing Editor Rich Ehisen welcomes two of California’s most respected health care voices - former California Health and Human Services Secretary Diana Dooley and Dr. Micah Weinberg, President of the Bay Area Council Economic Institute - for a discussion of these issues and more during our 2019 Hot Topic Webinar Series: Health Care. Register here to reserve your spot.