Here come the border wall lawsuits

AP Photo/Jae C. Hong, File

Everyone knew it was coming from the moment the President suggested he was going to declare an emergency to fund the border wall. The members of the press knew it. The individual states were telegraphing their punches. The President himself knew it, predicting he would lose in the Ninth Circuit but perhaps win at the Supreme Court. There were always going to be lawsuits over the emergency declaration and now they’ve begun. Sixteen states are banding together in an effort to stop construction of more border walls. (NY Post)

A total of 16 states have joined together in a lawsuit against President Trump’s emergency declaration to fund a multi-billion dollar wall across the Mexican border.

The lawsuit was filed in Federal District Court in San Francisco and claims that the president does not have power to divert funds because Congress controls spending, according to the California attorney general’s office.

The states which have signed on are all controlled by Democrats — including New York, California, Colorado, Delaware, Maryland, Oregon and others.

While anything can and usually will happen in a San Francisco court if it causes trouble for President Trump, even one of CNN’s legal analysts this morning was forced to admit that this lawsuit has a tough hill to climb. While it’s certainly true that Congress holds the national purse strings, their argument is that the President is grabbing funds not appropriated by the legislature. But is that true? Keep in mind that if the money comes from the military’s budget, Congress already appropriated those funds. How the military spends the money is pretty flexible and generally up to the executive branch. But there are more complications awaiting these lawsuits.

First, there are already provisions under federal law, Title 10, Section 2808, allowing the President to move money around in this fashion and engage in construction projects during either a time of war or a declared emergency. Even if polling shows a significant majority don’t believe that there’s “an emergency” on the border, the definition of what the President can believe constitutes an emergency is incredibly vague. Further, the courts have historically been very hesitant to rein in the White House on questions of such emergencies or matters of national security and defense.

But even if that weren’t the case, it appears that the President could have authorized military spending and manpower to construct a wall without even declaring an emergency. Under Title 10, Section 284, subsection (b)(7), the military can be employed for the purpose of “construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries” provided the work being done is no more than 25 miles from the border or outside the border. That pretty much sounds like the definition of requesting military help in building a wall to me.

It’s tough to see how the courts toss this effort, though the Ninth Circuit will still likely take a stab at it. (If only to cause problems for Trump.) Of course, many rules of normal order have flown out the window with the rise of The Resistance, so nobody really knows how this chapter of the story ends.