- The Washington Times - Thursday, February 21, 2019

One Clinton judge, an Obama judge, and a Trump judge.

That’s who’s been assigned to hear the legal challenges filed so far to President Trump’s new border wall emergency declaration, in a case that’s shaping up to be the marquee legal fight of his administration.

While past presidents have circumvented Congress on things Capitol Hill had thought it had blocked, have redirected money Congress appropriated, and triggered the same National Emergencies Act that Mr. Trump is using as justification to build part of his border wall, none have produced the firestorm that surrounds last week’s announcement.

New York’s attorney general, who is part of the highest-profile challenge, said the president has created a “constitutional crisis.”

Nonsense, say conservative legal scholars, who say the president is on firm legal footing, given the expansive powers Congress conveys in the National Emergencies Act.

But Mr. Trump’s action has already drawn five lawsuits.

Two of them, one from a coalition of Democratic states led by California and the other from the Sierra Club and American Civil Liberties Union, have been filed in the famously liberal federal court in the Northern District of California.

Judge Haywood S. Gilliam Jr., an Obama appointee confirmed to the bench in 2014, was assigned those cases Wednesday.

Two other lawsuits, one by a group of Texas landowners and the other by a coalition of environmental groups, was filed in the federal district court in Washington, D.C., and have landed before Judge Trevor N. McFadden, a Trump appointee confirmed to the court in 2017.

A fifth lawsuit was filed late Wednesday in federal court in the Western District of Texas, and Senior District Judge David Briones was given that case Thursday.

One lawyer involved in border wall litigation said at least some plaintiffs were likely searching for a place to find an “Obama judge.”

Other legal analysts said that was a sad lens with which to view the law, and said they hoped — and expected — judges would treat the cases fairly no matter who appointed them.

The lawsuits make the same basic challenges. They argue there is no border emergency, since apprehensions of illegal immigrants are down, immigrants aren’t generally responsible for crime, and a fence won’t stop the hard drugs that mostly get driven through official border crossings. Even if there is an emergency, the lawsuits say Congress, not the president, gets to decide where taxpayers’ money is spent, and Congress only gave Mr. Trump $1.375 billion, not the $8 billion he now says he has access to.

Bernadette Meyler, a law professor at Stanford University, said arguing the border emergency is a tough one for the challengers, since judges will usually defer to a president making judgments about whether an emergency exists or not.

She said the stronger argument is over Congress’s powers, where the Supreme Court has said Capitol Hill has the power to appropriate money, and lawmakers just can’t give that away to the president, no matter what a law might suggest.

In this case, she said, Congress explicitly considered and rejected Mr. Trump’s full request, which under court precedent means his emergency powers are at their lowest.

Ms. Meyler said she thinks the president loses.

“My pretty strong view is it’s unconstitutional,” she said, adding that she thinks there’s a majority of justices on the Supreme Court who adhere to a strong separation of powers doctrine who will end up overruling the president.

But Josh Blackman, a professor at South Texas College of Law, said most of the legal wrangling is premature because the specifics of the emergency move are still unknown.

While the president issued his declaration, it was remarkably short, doing little other than announcing the emergency, then tasking his Cabinet with taking action to combat it.

It’s still not clear where exactly the president is finding the extra money — some $6.7 billion — to expand his wall-building beyond the $1.375 billion Congress did approve.

All that’s known is the president intends to tap $600 million from a Treasury forfeiture fund, $2.5 billion from Pentagon drug interdiction money and $3.6 billion from military construction projects.

The emergency declaration only applies to the military construction money. Under the law, the drug interdiction money is already allowed to be spent on fencing, as long as it’s within certain parameters. And the treasury money is easily moved.

Mr. Blackman said that means even if the emergency declaration loses, the president still gets more than $4 billion in wall money. The only impediment is the 2020 election, since a future president could quickly reverse his decisions.

“This is a winner for Trump. He’s going to win this one way or another,” Mr. Blackman said. “The only question is if he wins re-election.”

David B. Rivkin Jr., a former top legal advisor in GOP administrations, said the law governing emergencies offers expansive powers and Congress didn’t put many limits on it.

“All of these lawsuits suffer from fundamental flaws, both relating to standing of the plaintiffs and the merits. I have every confidence that the president will prevail in the end,” said Mr. Rivkin, who was one of the lawyers battling Obamacare under the previous administration.

One of those Obamacare challenges could provide an interesting precedent.

In that case, heard in the federal district court in Washington, D.C., a judge ruled that President Obama overstepped his powers by trying to spend money on “cost-sharing payments” to insurance companies, even though Congress specifically zeroed out that money.

Mr. Obama claimed the 2010 Affordable Care Act implicitly gave him permission to spend the money, even over Congress’s objections. A judge issued a preliminary ruling against Mr. Obama, but the case was later settled.

Mr. Trump, in this new case, is spending money based on the older Emergencies Act, going beyond what Congress specifically allowed.

But legal scholars said there are differences — including that the Emergencies Act has a specific political remedy for Congress. It can pass a resolution of disapproval overturning any emergency.

House Democrats on Friday will announce such a move.

Such a resolution could pass on a majority vote in each chamber, but Mr. Trump would almost certainly respond with a veto, meaning the House and Senate would have to muster two-thirds majorities to overturn him. House GOP leaders have said they have the votes to prevent that.

And there’s a danger that if Congress tries but fails to overturn the president, that could dent opponents’ legal arguments, since it proves Capitol Hill did have other tools available beyond the courts — it just didn’t have enough votes to win.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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