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Government Says It Won’t Use National Emergency Funding for Border Wall Construction in Rio Grande Valley; Public Citizen Dismisses Case

April 22, 2019

Government Says It Won’t Use National Emergency Funding for Border Wall Construction in Rio Grande Valley; Public Citizen Dismisses Case

Statement of Allison Zieve, Director, Public Citizen Litigation Group and Counsel for Plaintiffs Alvarez, Gaytan, Alvarez and Frontera Audubon Society

This afternoon, we filed a notice of dismissal in Alvarez v. Trump, which was the first case filed to challenge the president’s Feb. 15 declaration of a national emergency at the southern border. In the suit, we represented the Frontera Audubon Society and three landowners in South Texas on whose land the government is planning to construct a border barrier.

The complaint urged the court to find that President Donald Trump exceeded his authority under the Constitution and the National Emergencies Act, and to block the U.S. Department of Defense from using funds appropriated for other purposes to build a border wall.

Recently, in sworn declarations filed in the case, the government stated 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.

The dismissal of this lawsuit does not alter the fact that the declaration of a national emergency and invocation of emergency powers was contrary to Congress’ express decision not to fund a border wall. If the president uses the National Emergencies Act to fund building elsewhere along the southern border – building for which Congress has expressly withheld funding – that action cannot be squared with the Constitution.

Since enactment of the National Emergencies Act in 1974, no president – until now – has used an emergency declaration to circumvent Congress. One could debate whether each national emergency declaration since 1974 addressed an actual “national emergency.” It is not debatable, however, that no president in the 45 years since enactment of the Act – until now – has invoked a national emergency to do an end run around Congress. No president – until now – has used the act to claim money for a purpose that Congress has expressly refused to fund.

In so doing, the president has usurped Congress’ power of the purse in violation of the separation of powers.