Federal court to hear first legal challenge to Trump emergency declaration for border wall

Image: Migrants walk near the border between Ciudad Juarez, Mexico, and El
Migrants walk near the border between Juarez, Mexico, and El Paso, Texas, on May 9, 2019. Copyright Jose Luis Gonzalez Reuters
By Pete Williams with NBC News Politics
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The administration put together a plan for spending about $6 billion dollars, mostly from the Pentagon budget.


WASHINGTON — President Donald Trump's declaration of a national emergency to divert billions of dollars from the Pentagon for a border wall faces its first courtroom test Friday in Oakland, California.

The Sierra Club and a group of southern U.S. communities are asking a federal judge to immediately block the plan. It was announced in February after Congress declined to approve the billions requested by the president. Federal District Court Judge Haywood Gilliam holds a hearing Friday morning on their request for an nationwide order to stop the construction.

Operating under its emergency declaration, the administration put together a plan for spending about $6 billion dollars, mostly from the Pentagon budget. Acting Defense Secretary Patrick Shanahan has told Congress the money would build 256 miles of border wall, with 63 of them completed by the end of the year.

The opponents, represented by the ACLU, say the president's plan exceeds his powers, because he cannot spend more than Congress has authorized or use the money in a way that's inconsistent with the purposes of appropriations already made. Their suit also says the emergency declaration law invoked by the president allows use of Pentagon construction funds only to support the military.

"There is no emergency requiring the use of the armed forces along the U.S.-Mexico border," their lawsuit says, "and construction of a border wall is not necessary to support such use of the armed forces." Besides, they say, a separate law passed by Congress allows the use of Defense Department support only for building facilities needed to block drug smuggling at the border.

The Sierra Club further says the wall would cause irreversible environmental damage. "Endangered species could disappear from our southern border, while fragile landscapes are decimated by this destructive and pointless vanity project," says Gloria Smith, the group's managing attorney.

In court filings defending the plan, the Justice Department says federal law gives the president wide latitude in deciding when to declare a national emergency. "The statutory scheme leaves to the president the determination of whether a national emergency requires the use of the armed forces," government lawyers say. Courts have no authority to second-guess such a declaration, they argue.

As for whether the president is spending money beyond his authority, the government notes that Congress has already approved $1.375 for border wall construction. And the government says any dispute on this question is between Congress and the White House, so outside parties like the Sierra Club have no legal right to bring this challenge.

Supported by its Democratic majority, the House of Representatives has separately filed a lawsuit of its own to challenge the border wall emergency declaration, which faces a dozen lawsuits in three separate federal courts. The Sierra Club's request for a nationwide injunction to stop the work is the first to be heard by a judge.

Shortly after declaring a national emergency, Trump predicted that he would not fare well in the cases filed in California. "They will sue us in the 9th Circuit," he said. "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."

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