Border Wall Emergency Declaration Litigation
On February 15, 2019, President Trump followed through on a threat to declare a national emergency under the National Emergencies Act (NEA) of 1976 and to invoke emergency powers in order to secure additional money for construction of a wall along the southern border. Congress—holding the “power of the purse” granted to it by Article I of the U.S. Constitution―had repeatedly refused to grant Trump the funding he sought to build the wall. At the same time that Trump announced his intention to use emergency powers, he also announced that he would divert funds from other programs that do not require the declaration of a national emergency, such as funds set aside for drug interdiction programs (10 U.S.C. § 284) and funds obtained through asset forfeiture programs (3 U.S.C. § 9705). In total, Trump announced an intention to commandeer approximately $6.5 billion that Congress had not allocated for border wall funding.
The specific emergency power Trump invoked was 10 U.S.C. § 2808, which allows for the diversion of funds for “military construction projects” when there is a “national emergency” that “requires the use of the armed forces,” and when the military construction is “necessary to support” such use. Trump has proposed moving $3.6 billion from other military construction projects to support border wall construction under this provision.
Various organizations and individuals responded to the emergency declaration by filing suit in different federal courts. The Brennan Center has filed amicus curiae briefs in several of these cases. Drawing on the Center’s extensive research in this area, the briefs demonstrate that the president’s use of emergency powers, in the absence of a true emergency and for the express purpose of subverting the will of Congress, is contrary to both Congress’s intent in enacting the NEA and to forty years of post-enactment practice. The briefs also highlight the dangers that would be posed by allowing Trump’s declaration to stand, in light of the dozens of other emergency powers that could be similarly abused.
The Brennan Center has filed amicus briefs in the following cases:
- United States House of Representatives v. Steven T. Mnuchin, et al. in the Federal District Court for the District of D.C. Amicus brief representing the Brennan Center in support of plaintiff’s motion for a preliminary injunction filed April 30, 2019.
- Sierra Club and Southern Border Communities Coalition v. Donald J. Trump, et al. in the Federal District Court for the Northern District of California. Amicus brief representing the Brennan Center and The Cato Institute in support of plaintiff’s motion for preliminary injunction filed May 2, 2019.
- County of El Paso, Texas and Border Network for Human Rights v. Donald J. Trump, et al. in the Federal District Court for the Western District of Texas. Amicus brief representing the Brennan Center in support of plaintiffs’ motion for summary judgment filed May 2, 2019.