By Charlie Savage and Robert Pear

New York Times News Service

Past emergencies

Presidents have invoked emergency-powers statutes nearly five dozen times since Congress enacted the National Emergencies Act of 1976, but never before has one been used to make an end-run around Congress after it rejected funding for a particular policy.

WASHINGTON — A coalition of 16 states, including California, New York and Oregon, on Monday challenged President Donald Trump in court over his plan to use emergency powers to spend billions of dollars on his border wall.

The lawsuit is part of a constitutional confrontation that Trump set off Friday when he declared that he would spend billions of dollars more on border barriers than Congress had granted him. The clash raises questions over congressional control of spending, the scope of emergency powers granted to the president and how far the courts are willing to go to settle such a dispute.

The suit, filed in U.S. District Court in San Francisco, argues that the president does not have the power to divert funds for constructing a wall along the Mexican border because it is Congress that controls spending.

Xavier Becerra, the attorney general of California, said the president himself had undercut his argument that there was an emergency in the border.

“Probably the best evidence is the president’s own words,” he said, referring to Trump’s speech announcing his plan Friday: “I didn’t need to do this, but I’d rather do it much faster.”

The lawsuit, California et al. v. Trump et al., says that the plaintiff states are going to court to protect their residents, natural resources and economic interests. “Contrary to the will of Congress, the president has used the pretext of a manufactured ‘crisis’ of unlawful immigration to declare a national emergency and redirect federal dollars appropriated for drug interdiction, military construction and law enforcement initiatives toward building a wall on the United States-Mexico border,” the lawsuit says.

Congress is on its own separate track to challenge the president’s declaration. The Democrat-controlled House of Representatives may take a two-prong approach when it returns from a recess. One would be to bring a lawsuit of its own. Lawmakers could also vote to override the declaration that an emergency exists, but it is doubtful Congress has the votes to override Trump’s certain veto, leaving the courts a more likely venue.

Joining California and New York in the lawsuit are Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon and Virginia. All have Democratic governors but one — Maryland, whose attorney general is a Democrat — and most have legislatures controlled by Democrats.

The dispute stems from steps Trump said he would take after lawmakers granted him only $1.375 billion for new border barriers, legislation he signed last week to avoid another government shutdown.

Trump asserted the power to tap three additional pots of money on his own: $600 million from a Treasury Department asset forfeiture fund for law enforcement priorities; about $2.5 billion from a military anti-drug account, most of which would first be siphoned from other military programs the Pentagon has yet to identify; and $3.6 billion in military construction funds he said he could redirect by invoking an emergency-powers statute.

“Even though Trump’s political maneuver to get around an uncooperative Congress looks like it stretches the Constitution, the questions presented in court will raise ordinary and complicated issues of administrative law,” said Peter Shane, an Ohio State University law professor and co-author of a separation-of-powers casebook.

Two cases had already been filed after Trump’s announcement — one by the nonprofit watchdog group Public Citizen, representing several Texas landowners and a Texas environmental group, and the other a case jointly brought by the Center for Biological Diversity, Defenders of Wildlife and the Animal Legal Defense Fund.

At least two other lawsuits are expected to be filed later this week. The American Civil Liberties Union has announced its intention to file a case, but has not yet publicly identified its client. The other case will be brought by Protect Democracy, another watchdog group, and the Niskanen Center, a center-right policy institute, on behalf of El Paso County and the Border Network for Human Rights.

Many critics have challenged whether an emergency truly exists on the southern border that a wall would solve, pointing to government data showing that the number of people crossing illegally has dropped significantly over the past generation and that most drugs are smuggled through ports of entry. The president has argued, without proof, that the emergency declaration is warranted because the migrants “invading” the United States across the Mexico border have caused epidemics of crime and drug use.

Any of the lawsuits’ plaintiffs will need to establish standing by showing that they are suffering some particular injury from what Trump is doing. Several of the lawsuits involve people who own land or represent communities along the Mexican border in Texas, where Trump has put the focus of his emphasis on the need for more barriers. But it is not clear whether any of the fencing will be built in California or New Mexico, two of the states in the lawsuit, and it certainly will not be built in other states involved in the litigation, like New York, New Jersey or Hawaii.

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