On February 15, 2019, President Trump signed the 2019 Consolidated Appropriations Act which provides $1.375 billion for the construction of primary pedestrian fencing in specific locations at the US-Mexican border (the Southern Border). On the same day, President Trump issued the Proclamation declaring that a national emergency exists at the Southern Border of the United States under the National Emergencies Act and directing federal agencies and the military to act under certain specified statutes.
The White House Statement issued with the Proclamation states that $6.7 billion additional funds appropriated for drug interdiction, military construction, and law enforcement initiatives will be available to build the border wall upon declaration of an emergency. As of March 7, 2019, there are six major legal challenges to Trump’s national emergency declaration:
Alvarez et al. vs. Trump et al.: On February 15, 2019, the Frontera Audubon Society and three landowners in south Texas filed a case in the United States District Court for the District of Columbia and seek declaratory and injunctive relief to invalidate and block the Proclamation. They argue that the Proclamation violates the statutes invoked as well as Separation of Powers under U.S. Constitution. Three landowners were informed that the federal government would seek to build a wall on their properties if money were available in 2019. They allege that the construction of the wall “threatens an imminent invasion of their privacy and the quiet enjoyment of their land.” In addition, the Frontera Audubon Society’s “members’ ability to observe wildlife will be impaired by the construction of a border wall and the resulting destruction of critical habitat.”
Citizens for Responsibility and Ethics in Washington vs. Department of Justice: On February 15, 2019, CREW filed a Freedom of Information Act (FOIA) request in the United States District Court for the District of Columbia. They challenge the failure of the Office of Legal Counsel to disclose to CREW documents relevant to discussions about “the power of the president to invoke emergency powers to declare a national emergency including, inter alia, the president’s power to invoke those powers to build a wall. . .” CREW seeks declaratory judgment that defendant DOJ is in violation of the FOIA and injunctive relief ordering DOJ to process and release to CREW the requested documents.
Center for Biological Diversity et al. vs. Trump et al.: On February 16, 2019, the Center for Biological Diversity, Defenders of Wildlife, and Animal Legal Defense Fund filed a case in the United States District Court for the District of Columbia and seek declaratory and injunctive relief. They argue that the Proclamation violates the statutes invoked as well as the Appropriations Clause and the Take Care Clause under U.S. Constitution. They state that “border barriers prevent the passage of wildlife, and could result in the extirpation of jaguars, ocelots, and other endangered species within the United States.” In addition, the diversion of funds that would otherwise be used to combat organized crime including illegal wildlife trafficking further harms Plaintiffs’ interests in protecting and preserving biological diversity.
State of California et al. vs. Trump et al.: On February 18, 2019, 16 states led by California Attorney General Xavier Becerra filed a case in the United States District Court for the Northern District of California and seek declaratory and injunctive relief. Plaintiff states claim that “President Trump has veered the country toward a constitutional crisis of his own making.” They argue that the Proclamation violates the statutes invoked, National Environmental Policy Act (NEPA) as well as Separation of Powers and the Appropriations Clause under U.S. Constitution. Plaintiff states further allege that “if the Administration were to use the funding sources identified in the Executive Actions, [they] collectively stand to lose millions in federal, [which] will cause damage to their economies. . .And the construction of a wall along California’s and New Mexico’s southern borders will cause irreparable environmental damage to those States’ natural resources.”
Sierra Club et al. vs. Trump et al.: On February 19, 2019, Sierra Club and Southern Border Communities Coalition filed a case in the United States District Court for the Northern District of California and seek declaratory and injunctive relief. They argue that the Proclamation violates the statutes invoked, NEPA as well as Separation of Powers, the Appropriations Clause, and the Presentment Clause under U.S. Constitution. They allege that “The President’s declaration was made solely out of disagreement with Congress’s decision about the proper funding level, location, and timetable for constructing a border wall.” They also claim that the construction of the wall would negatively impact the environment and communities along the border and therefore the interest of members of the organizations.
El Paso County, Texas et al. vs. Trump, et al.: On February 20, 2019, El Paso County, Texas and Border Network for Human Rights filed a case in the United States District Court for the Western District of Texas and seek declaratory and injunctive relief. They argue that the Proclamation violates the statutes invoked as well as Separation of Powers, the Appropriations Clause, the Spending Clause, and the Take Care Clause under U.S. Constitution. They allege that the Proclamation, subsequent militarization of the area, and authorization of construction in the area harm the interests of the border area and residents there. They further state that “When the President oversteps his authority and overrides the constitutional powers of the legislative branch, it is the appropriate role of the judicial branch to enforce the separation of powers.”