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On Trump’s ‘Emergency,’ the Law Is on Our Side

By Robert Weissman

Three days after President Donald Trump declared a national emergency to claim funding for a border wall that Congress refused to fund, nationwide protests took place. In Washington, D.C., protesters on Feb. 18 showed support for speakers from Public Citizen and other organizations that disputed Trump’s national emergency declaration. Photo courtesy of Griet Van Acker.

President Donald Trump’s declaration of a national emergency secure funding for his racist and needless border wall is an outrageous abuse of power – perhaps the most dangerous yet by the unstable and increasingly autocratic president. If this invocation of emergency on false pretenses is tolerated, we fear it could justify almost limitless abuses of presidential and military power, including far-reaching clampdowns on civil rights.

That’s why we jumped into action to push back on the emergency declaration. The day Trump declared the national emergency, we filed suit to challenge it. We also helped spearhead a quickly formed coalition to demand Congress overturn Trump’s emergency order with a resolution of disapproval.

Public Citizen lawyers had been monitoring Trump’s wall construction plans since his election. When rumors started swirling that Trump might declare an emergency to break the deadlock over wall funding, our attorneys intensified their preparation. Several Texas landowners and a Texas environmental organization who will experience firsthand the immediate impact of Trump’s illegal emergency declaration asked us to serve as their attorneys. Once Trump formally issued his declaration, our lawyers feverishly worked on the complaint – the first filing in the case, alleging the president’s action was unlawful – and managed to get it filed the same day. Our lawsuit received prominent media attention across the country and around the world.

Meanwhile, we joined with other democracy and immigrant rights groups to push Congress to adopt a resolution of disapproval, a procedure that by the terms of the National Emergencies Act overrides the emergency declaration. The U.S. House of Representatives moved quickly by a 245-182 vote to support a resolution of disapproval. Under the special rules of the National Emergencies Act, the House vote forced a Senate vote within three weeks. We delivered more than half a million petitions supporting the resolution to the Senate. With allies, we generated tens of thousands of calls. And we coordinated with conservative organizations critical of Trump.

We went to press before the Senate vote was held, but it was widely anticipated that enough Republicans would join all Senate Democrats to win passage of the resolution of disapproval. Trump is expected to veto the resolution.

We believe the stake are incredibly high in the emergency declaration fight, which is why have devoted so many resources to it.

The danger of Trump’s action to America is not limited to the outrage of wasting taxpayer money or the immorality of building a wall that is designed only to symbolize disdain for and antagonism to people of color seeking refuge in our country.

Trump has declared an emergency to circumvent an explicit congressional decision not to fund the wall and to redirect funds in a way that would be illegal in the absence of an emergency declaration (and which we believe is illegal even with the emergency declaration).

If the president can merely cry “emergency” to override national law and contravene explicit congressional action – particularly when the claimed emergency is transparently fraudulent – then it is hard to know what limits exist on presidential power. What’s to stop the president from declaring an emergency and limiting the right to protest? To round up people of color en masse to combat purported gang activity? To deploy the military on the streets to maintain order? To censor social media and Internet conversations?

Prior presidents have, for the most part, exercised self-restraint against use and misuse of emergency powers. But this president does not know the meaning of self-restraint. If the slide to authoritarianism and tyranny is to be averted, he will need to be restrained – in the first place by the Congress and hopefully the courts, but ultimately by the American people.

We believe the law is on our side and that we should prevail in our lawsuit. (We are not likely to get even a first ruling in the case before late summer.) But we know better than to assume the courts will rule in our favor.

That said, we are hopeful that the work that we and others have done – both the litigation and the public mobilization – has exhibited enough resistance, and unearthed enough Republican opposition and concern, that Trump will not feel empowered to declare another fake emergency. We are hopeful, but we are not taking anything for granted. With this president, that’s asking for very dangerous trouble.