Filed on February 15, 2019, this case challenged the declaration of a national emergency issued by President Trump that same day, the invocation of emergency powers stemming from that declaration, the resulting agency actions taken or directed to be taken in the exercise of those claimed emergency powers, and the expenditure of funds to construct a border wall in the absence of the constitutionally required appropriations and statutory authorization for such expenditures. Rather than responding to an emergency requiring immediate action, the declaration addresses a long-running disagreement between the President and Congress about whether to build a wall along the southwestern border. Congress refused to appropriate funds for that purpose. However, under our Constitution, built on the principle of separation of powers, a disagreement between the President and Congress about how to spend money does not constitute an emergency authorizing unilateral executive action. The declaration and the planned expenditure of Department of Defense funds for construction of the wall exceed President Trump’s authority under the National Emergencies Act, other statutes invoked by the President as authority to fund the wall, and the Constitution. The invocation of emergency powers and exercise of those powers, and the diversion of funds to build a wall, are thus contrary to law.
The plaintiffs in the case included three landowners in South Texas who were informed that the federal government would seek to build a wall on their properties if money were available in 2019 for construction of a border wall. The construction of a wall pursuant to the emergency declaration threatened an imminent invasion of their privacy and the quiet enjoyment of their land, both during construction and after. A fourth plaintiff was a non-profit environmental organization in Texas, whose members’ ability to observe wildlife will be impaired by the construction of a border wall and the resulting destruction of critical habitat.
After we sued, the government submitted sworn declarations that it will not use funds transferred pursuant to the national emergency proclamation for any ongoing or planned barrier construction in the Rio Grande Valley, where our clients are located. The declarations state that the government will use only the funds appropriated by Congress for border fencing in the Continuing Appropriations Act, 2019.
In light of the government’s declarations, made under penalty of perjury, stating that the money that the President claimed through his proclamation will not be used to build a border wall in the area where our clients are located, we dismissed the case. Six other cases challenging the president’s action and transfer of funds remain pending.