Skip Navigation
Court Case Tracker

Border Wall Emergency Declaration Litigation

The Brennan Center has filed amicus curiae briefs in several cases that challenge President Trump’s declaration of a national emergency to secure money for a border wall.

Last Updated: October 16, 2020
Published: May 8, 2019

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 for Justice in support of plaintiff’s motion for a prelim­in­ary injunc­tion filed April 30, 2019. 
    • Update: On June 3, 2019, the District Court denied the House’s motion for a prelim­in­ary injunc­tion, ruling that the legis­lat­ive branch lacks stand­ing to sue exec­ut­ive branch agen­cies regard­ing their use of funds. The House appealed the decision to the D.C. Circuit Court a week later. (Febru­ary 11, 2020)
    • Update: On Febru­ary 18, 2020, a three-judge panel of the D.C. Circuit Court heard oral argu­ments. Follow­ing the argu­ments, the D.C. Circuit Court filed an en banc order on March 13, 2020 to rehear United States House of Repres­ent­at­ives v. Mnuchin and Commit­tee on the Judi­ciary of the United States House of Repres­ent­at­ives v. McGahn, due to the common Article III issue in both of these cases. These cases are sched­uled for oral argu­ment before the en banc court on April 28, 2020. (April 30, 2020)
    • Update: In August 2020, the D.C. Circuit, sitting en banc decided the McGahn case and remanded this case back to the original panel for further proceed­ings in light of McGahn. In Septem­ber, the panel held that the House of Repres­ent­at­ives did have stand­ing to raise consti­tu­tional claims, and remanded the case back to the district court for further proceed­ings.
  • 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 for Justice and The Cato Insti­tute in support of plaintiff’s motion for prelim­in­ary injunc­tion filed May 2, 2019. 
    • Update: On May 24, 2019, the District Court for the North­ern District of Cali­for­nia partially gran­ted the Sierra Club’s motion for a prelim­in­ary injunc­tion. The court ruled that the govern­ment’s use of certain repro­grammed non-emer­gency funds is likely unlaw­ful, and deferred consid­er­a­tion of the lawful­ness of the govern­ment’s proposed use of emer­gency funds. The govern­ment appealed to the Ninth Circuit Court of Appeals for a stay of the prelim­in­ary injunc­tion, which the Ninth Circuit denied on July 3, 2019. On July 26, 2019, however, the Supreme Court gran­ted the govern­ment’s applic­a­tion for a stay pending further proceed­ings, hint­ing that the plaintiffs might lack stand­ing to sue. On Decem­ber 11, 2019, the District Court gran­ted in part a motion for summary judg­ment, hold­ing the govern­ment’s use of emer­gency funds to be unlaw­ful, and issued a perman­ent injunc­tion halt­ing the disburse­ment of those funds, but stayed the perman­ent injunc­tion pending appeal in accord­ance with the Supreme Court’s July 26th order. The Ninth Circuit then declined to lift the stay in a ruling on Decem­ber 20, 2019. The appeal is now before the Ninth Circuit on the merits. (Febru­ary 11, 2020)
    • Update: On Febru­ary 20, 2020, the Bren­nan Center for Justice and The Cato Insti­tute filed an amicus brief in support of the plaintiffs-appellees in the combined cases Sierra Club, et al. v. Donald J. Trump, et al. and State of Cali­for­nia, et al. v. Donald J. Trump, et al. in the U.S. Court of Appeals for the Ninth Circuit.  (Febru­ary 20, 2020)
    • Update: On Octo­ber 9, 2020, the U.S. Court of Appeals for the Ninth Circuit upheld the perman­ent injunc­tion against the use of emer­gency powers to fund construc­tion of the border wall. The panel, on a 2–1 vote, held that the Trump admin­is­tra­tion had not satis­fied two of 10 U.S.C. 2808’s require­ments in the border wall construc­tion projects: “they are neither neces­sary to support the use of the armed forces, nor are they milit­ary construc­tion projects.”
  • 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 for Justice in support of plaintiffs’ motion for summary judg­ment filed May 2, 2019. 
    • Update: In a decision from Octo­ber 11, 2019, the District Court for the West­ern District of Texas gran­ted summary judg­ment to plaintiffs on the ground that the admin­is­tra­tion’s attempt to repro­gram funds for border wall construc­tion viol­ated appro­pri­ations law. On Decem­ber 10, 2019, the court perman­ently enjoined the govern­ment from using funds beyond the $1.375 billion that Congress appro­pri­ated for the border wall. The govern­ment appealed and the Fifth Circuit Court of Appeals stayed the perman­ent injunc­tion in a decision on Janu­ary 8, 2020 pending a decision on the appeal. (Febru­ary 11, 2020)
    • Update: Amicus brief repres­ent­ing the Bren­nan Center for Justice in support of plaintiffs-appellees filed April 3, 2020 in the U.S. Court of Appeals for the Fifth Circuit.
  • Center for Biolo­gical Diversity, et al. v. Donald J. Trump, et al. in the Federal District Court for the District of D.C. Amicus brief repres­ent­ing the Bren­nan Center for Justice in support of plaintiffs filed May 29, 2019.
    • Update: On Decem­ber 16, 2019, the court held a joint hear­ing with Rio Grande v. Trump regard­ing a motion to dismiss both sets of plaintiffs’ complaints. (Febru­ary 11, 2020)
  • Rio Grande Inter­na­tional Study Center, et al. v. Donald J. Trump, et al. in the Federal District Court for the District of D.C. Amicus brief repres­ent­ing the Bren­nan Center for Justice in support of plaintiffs filed August 16, 2019.
    • Update: On Decem­ber 16, 2019, the court held a joint hear­ing with Center for Biolo­gical Diversity v. Trump regard­ing a motion to dismiss both sets of plaintiffs’ complaints. (Febru­ary 11, 2020)
  • State of Wash­ing­ton v. Donald J. Trump, et al. in the Federal District Court for the West­ern District of Wash­ing­ton. Amicus brief repres­ent­ing the Bren­nan Center for Justice in support of plaintiffs filed Novem­ber 1, 2019.
    • Update: On Janu­ary 23, 2020, the District Court for the West­ern District of Wash­ing­ton held oral argu­ment on the State of Wash­ing­ton’s motion for summary judg­ment. (Febru­ary 11, 2020)