National emergency: Trump's 'clear abuse of power' faces torrent of lawsuits

Extract from The Guardian

Donald Trump

Declaration prompts dire warnings but fallout could be contained by successful legal challenge or resolution in Congress

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Sat 16 Feb 2019 03.26 AEDT Last modified on Sat 16 Feb 2019 04.06 AEDT

The public does not appear to be with the president. Only 32% of Americans favor the declaration in polling on average, with 65% opposed, figures show. Photograph: UPI/Barcroft Images

As state attorneys general across the country threaten to sue the White House over Donald Trump’s declaration of a national immigration emergency on Friday, Democrats and Republicans insisted Trump was overstepping his powers, while legal analysts warned of a dangerous new phase of the Trump presidency.

But the potentially huge fallout from the emergency declaration – which might upset the constitutional balance of powers or divert funding from natural disasters crises – could be contained if an anticipated avalanche of lawsuits succeeds in blocking Trump in court, or if Congress passes a resolution terminating the declaration.
Trump is expected to fight back against such potential obstacles, in what many observers warned would be a direct challenge to the explicit assignment in the US constitution of the power of the purse to Congress – not the president.
American Civil Liberties Union executive director Anthony Romero called the declaration “a clear abuse of presidential power – one that sidesteps the role of Congress in the appropriation of funds”.
He said: “The chickens will come to roost when the next president uses these powers to call a national emergency on gun control or climate change.”

Democratic congressional leaders echoed the sentiment. “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,” House speaker Nancy Pelosi and Senate minority leader Chuck Schumer said.
“The Congress will defend our constitutional authorities in the Congress, in the courts, and in the public, using every remedy available.”
While the implications for presidential power were the point of sharpest concern in the immediate aftermath of the declaration, analysts identified many other potential hazards, from the diversion of disaster relief funds to a damaging political fight.
Under the national emergency law, the House of Representatives has the power to pass a resolution terminating a state of emergency that the Senate would then be required to vote on. Texas congressman Joaquin Castro, a Democrat, said on Friday that he was preparing to introduce just such a resolution.
But Trump came in for criticism from an unusually strong contingent from his own party as well. “I believe it’s a mistake on the president’s part,” said Republican senator Susan Collins of Maine. “I don’t believe that the National Emergencies Act contemplated a president repurposing billions of dollars outside of the normal appropriations process.”

Mitch McConnell: Trump to sign funding bill but declare national emergency – video 

The Washington Post editorial board issued one of the more dire warnings. “By his declaration, Mr Trump will inaugurate a new, imperial phase of his presidency,” an editorial warned.
The public does not appear to be with the president. The hashtag, #FakeTrumpEmergency, was among the top five trending topics Friday morning in the United States on Twitter. Only 32% of Americans favor the declaration in polling on average, with 65% opposed, polling analyst Nate Silver pointed out.
That support could shrink if the wall funding is perceived as distracting from other necessary work. The declaration appears to give Trump the power to shift funding for military construction – as much as $21bn in unobligated military construction funding might be available, congressional aides told Foreign Policy – or from the US Army Corps of Engineers, which operates dams and is responsible for flood control and wildfire protections, wetland restoration and environmental stewardship.
But before such diversion of funding happens, the declaration could die in court. The justice department has advised the White House that the declaration was likely to be blocked in the courts, ABC News reported.
The Democratic Attorneys General Association, which counts members in 26 states, released a statement saying they would not hesitate to challenge the declaration.
“We will not hesitate to use our legal authority to defend the rule of law, as we did in our previous lawsuits, such as protecting Daca recipients and standing up against the President’s attempts to separate children from their families,” the statement said. Daca refers to an immigration amnesty program called Deferred Action for Childhood Arrivals.

NAACP Legal Defense fund president Sherrilyn Ifill also vowed to challenge the declaration. “With this move the president makes clear that the only unifying theme of his immigration policy is animus towards people of color,” she said in a statement. “Simply put: our foreign policy should never be dictated by racism or vanity.”
Many analysts see significant hurdles in court for the emergency declaration, just as federal court rulings from Hawaii to Virginia blocked various iterations of Trump’s attempted Muslim travel ban.

Harry Litman, a former deputy assistant attorney general in the Bill Clinton administration, wrote last month that “Trump has decent legal arguments on his side” under cover of the 1976 National Emergencies Act, which was meant to restrict situations in which the president might declare an emergency – and limits the duration of emergencies to 180 days, barring renewal – but had the unintended effect of formalizing the presidential power.
“The pivotal legal question is likely to be whether the courts defer to Trump’s determination as president or whether they review it independently,” Litman wrote. “Will the question be framed as ‘is there an emergency?’ or ‘Did the president plausibly conclude that there is an emergency?’”
Working against Trump is that there are no signs of an emergency afoot apart from his continual assertions on the matter. Border-crossing apprehensions hit a 46-year low in 2017, according to US customs and border protection figures. The Department of Homeland Security estimated undetected illegal border crossings dropped by more than 90% between 2006 and 2016.
“I just don’t think this is going to amount to much or have a long legacy,” tweeted Juliette Kayyem, a former DHS official under president Obama and a lecturer at Harvard. “It will get tied up in courts. Pelosi has a counter plan. It’s a bad norm, but it’s up to next president to reestablish those. It’s pathetic more than anything else. Did I say pathetic?”
Conservatives expressed distress at the president’s action, calling it anti-conservative.

“I remember when being Republican meant being for the rule of law, against unchecked executive authority, and for separation of powers,” tweeted Paul Rosenzweig, a professor at George Washington University law school and former homeland security official in the George W Bush administration. “Call me old school. I still am.”