- The Washington Times - Friday, February 15, 2019

That President Trump will be sued over his emergency declaration to build his border wall is not in doubt.

The more pressing questions are whether he’ll be able to continue construction while the legal challenges are pending, and whether his emergency powers will trump environmental laws and property rights objections.

The president said he’s ready for the legal fight — though he sounded less than optimistic about winning the early rounds, predicting near-certain losses in places like the 9th Circuit, the federal judicial circuit that covers the West Coast and which has been a major impediment to his immigration plans.

“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. And hopefully we’ll get a fair shake, and we’ll win in the Supreme Court,” Mr. Trump said.

The president’s opponents were lining up to force the legal battle, including in California, epicenter of the 9th Circuit.



“California will see you in court,” said Gov. Gavin Newsom.

The White House is not fazed.

Officials said what Mr. Trump is doing follows in the footsteps of previous presidents, who have declared more than 50 national emergencies over the years since the National Emergencies Act was adopted in the 1970s.

On at least two of those occasions the emergencies even involved moving money around, just as Mr. Trump is doing, the White House said.

That the president is turning to executive action is ironic, given Mr. Trump’s denunciations of President Obama for using executive powers to go around Congress and declare his DACA deportation amnesty for illegal immigrant “Dreamers.”

Yet at the same time, Democrats who cheered on Mr. Obama’s claims of power now decry Mr. Trump‘s.

Legal challenges to the DACA program and Mr. Obama’s powers are still being fought in courts seven years after he created the program.

The crux of the DACA argument was whether the president could create a categorical deportation amnesty for potentially millions of illegal immigrants without specific permission from Congress and without at least going through a full rule-making regulatory process.

Mr. Trump, meanwhile, will be tested on whether he can move money from places where Congress appropriated it to where he wants to spend it.

Some of the $8 billion he envisions for wall construction should be easier to defend. One $2.5 billion pool of cash, for example, comes from Pentagon money for counter-drug operations. The president doesn’t even need an emergency declaration to spend that on wall, the White House says, though he’ll have to prove it’s going to combat drug corridors.

Where the emergency declaration does matter is on $3.6 billion he wants to shift from other military construction projects to wall-building.

“The courts will determine that,” Mr. Trump said. “Look, I expect to get sued. I shouldn’t be sued.”

Other possible legal strikes could be more surgical.

The Homeland Security Department has powers to waive environmental laws to speed up construction.

But the Congressional Research Service has questioned whether that waiver power carries over to Pentagon construction under an emergency declaration. If not, the president’s projects could be tied up in court for years.

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