Elizabeth Goitein, co-director of the Brennan Center for Justice’s Liberty and National Security Program, said Trump wouldn’t be able to cite evidence introduced after the emergency declaration to defend his order.
While the lawsuits challenge Trump on whether it’s constitutional for him to divert funds allocated by Congress, they also call into question the rules the president invoked under the National Emergencies Act.
Peter Shane, a law professor at Ohio State University who specializes in separation-of-powers law, said the 1976 statute does not give Trump unlimited powers after declaring a national emergency. Rather, it gives him the authority to draw upon other rules created by Congress.
“It’s as if Congress had created a book of a bunch of recipes that the president is allowed to use only if he formally shouts ‘I’m hungry,’ ” Shane said.
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