- The Washington Times - Sunday, February 17, 2019

The National Butterfly Center sits on the U.S.-Mexico border, at the very crossroads of President Trump’s wall-building plans, which means last week brought the best of news and the worst of news.

In the course of a few hours Thursday, the sanctuary suffered a major legal setback in its lawsuit to try to prevent fencing from being built across its property. It then won a reprieve when Congress‘ spending bill specifically banned the administration from using any of the money to build fencing there — effectively carving the center out of the president’s plans.

By Friday, the news was bad again. Mr. Trump’s emergency declaration means construction can continue, notwithstanding Congress‘ orders, the White House says — including on the butterfly sanctuary.

“They believe they can do whatever the [expletive] they want,” said Marianna Trevino-Wright, executive director of the Butterfly Center in Texas. “They are going to just roll right over us. We’re now living in a completely lawless time, governed by a president who purports to be all about law and order. It’s straight out of Hitler’s playbook.”

Mr. Trump’s emergency declaration was a response to the deal Congress approved last week allocating $1.375 billion for 55 miles of new border wall construction for fiscal year 2019. That was far less than the $5.7 billion and 234 miles that the president requested.



The president signed the spending deal, which also funded dozens of departments and agencies through the end of the fiscal year, but coupled it with a 643-word declaration calling the southern border “a border security and humanitarian crisis.” He ordered a call-up of military reserves to assist at the border and invoked emergency construction powers to erect more fencing.

The White House said it is tapping $6.2 billion elsewhere in the budget — $600 million from a Treasury forfeiture fund, $2.5 billion in Pentagon counternarcotics cash and $3.6 billion earmarked for military construction — to carry out his wall-building plans.

Using the emergency money gets Mr. Trump around some of the restrictions Congress tried to impose, the White House says. Mr. Trump now could build any wall design he wants, circumventing lawmakers’ spending bill restriction that limited him to designs that existed as of 2017. While the $1.375 billion is still subject to those limits, the other money is not.

The additional money also can be spent to build in the butterfly center, the La Lomita historical park, the Santa Ana National Wildlife Refuge and two other areas that Congress specifically put off limits in the spending bill.

“The restrictions that are in place in the DHS appropriations apply to the $1.375 billion that is appropriated to DHS for fiscal year ‘19 wall money,” a senior administration official told reporters Friday. “Those restrictions do not apply to our funds under the Treasury Forfeiture Fund. They do not apply to the funds that we want to reprogram into the counternarcotics drug-fighting fund, nor do they apply to the $3.6 billion that we would potentially tap from the military construction fund.”

Harry Zirlin, an attorney for the butterfly center, said that interpretation is not ironclad. He said it will depend on how a judge interprets Congress‘ reference to “prior acts” doling out money.

“What does that mean, prior acts?” he said. “The short answer is, I don’t know.”

Ms. Trevino-Wright said Friday that construction was continuing on land adjacent to hers. She said the North American Butterfly Association, which runs the sanctuary, will continue to fight in court.

The wall the government envisions will bisect the center, with 70 acres below it and 30 acres above it. It will consist of a concrete levee wall with steel bollards on top.

The association suffered a setback Thursday when U.S. District Judge Richard J. Leon tossed out the sanctuary’s lawsuit and ruled that the government had the power to waive laws to build the wall. Judge Leon did, however, say that the center could file a set of claims about whether its constitutional rights are being violated.

Ms. Trevino-Wright said the president’s emergency declaration gives the center another legal target.

“We will be exercising every legal option we have to fight this,” she said.

Environmental groups have filed several lawsuits since Friday specifically challenging the emergency declaration.

Three Texas landowners and the Frontera Audubon Society in Texas asked the U.S. District Court for the District of Columbia to halt any action Mr. Trump might take under the declaration. They argued that the president’s emergency declaration was a sham.

The landowners said they are in the path for wall construction. The Audubon Society says its members are bird-watchers and that wall construction could chase their favorite fowls out of the area.

Most of the plaintiffs’ argument over the lack of an emergency rests on statistics suggesting that illegal immigration across the southwestern border is lower now than it was at its peak in the late 1990s and early 2000s.

The litigants also said whatever justification Mr. Trump had for declaring an emergency disappeared earlier Friday when, in announcing his plans, the president said he could have waited to get the money over time from Congress.

“I didn’t need to do this, but I’d rather do it much faster,” the president said.

The lawsuit challenges a $3.6 billion transfer of funds from military construction projects to the border wall and a $2.5 billion pot of money for Defense Department counternarcotics efforts.

Only the first of those required an emergency declaration, but the lawsuit says both are illegal — in the first case because there is no emergency and in the second because they doubted that border walls would block drug smuggling.

On Saturday, the Center for Biological Diversity filed another lawsuit, also in Washington, arguing that Mr. Trump stretched the emergency powers beyond their limits.

“Of the 58 times presidents have previously declared emergencies under the National Emergencies Act, none involved using the emergency powers to fund a policy goal after a president failed to meet that goal through foreign diplomacy (having Mexico pay for the wall) or the congressional appropriations process,” the center said.

The president said he is ready for the legal fight but sounded less than optimistic about winning early rounds. He predicted near-certain losses in the 9th U.S. Circuit Court of Appeals, which covers the West Coast and 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.

Officials said Mr. Trump is following in the footsteps of other presidents, who have declared more than 50 national emergencies since the National Emergencies Act was adopted in the 1970s.

On at least two of those occasions, the emergencies involved moving money 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’s use of executive powers to circumvent Congress and declare his Deferred Action for Childhood Arrivals deportation amnesty for illegal immigrant “Dreamers.”

Democrats who cheered 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.

Lawyers are looking at places where they can find anti-Trump judges.

Mr. Zirlin said he figures others, such as a promised lawsuit by the state of California, will have a better chance fighting the emergency declarations elsewhere.

“They have a better chance of finding an Obama judge better than I do,” he said.

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