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A Court Might Block Trump's Wall as Vice President Pence Argues Judges Should Not Have the Power to

The ACLU is suing the Trump administration over the president's national emergency declaration.
View of the U.S.–Mexico border wall on January 7th, 2019, in Tijuana, Mexico.

The American Civil Liberties Union is set to argue a case this week that could halt President Donald Trump's national emergency declaration, which diverted federal funds from the Department of the Treasury and the Department of Defense  to the construction of his southern border wall project. The lawsuit to stop what many call a baseless declaration comes amid the administration's pledges to restrict federal district courts' ability to rule on matters of national executive policy, in a move that would amount to the White House exempting itself from judicial oversight.

On Friday, a federal judge will hear the lawsuit, which the ACLU filed last month on behalf of the Sierra Club, which is concerned about the ecological impacts of the wall, and the Southern Border Communities Coalition advocacy groups.

Chief among the plaintiffs' arguments against the national emergency declaration is that Trump used it to circumvent the so-called "power of the purse" bestowed upon Congress in the Constitution. "Neither a declaration of emergency nor the statutes that [Trump and his staff] have invoked permit the President to disregard Congress's enacted appropriations legislation," the suit reads.

For the communities living at the southern border, the project will have both immediate and overarching consequences, the plaintiffs argue. "Walls divide neighborhoods, worsen dangerous flooding, destroy natural spaces, and waste resources that should instead be used on infrastructure these communities truly need," says Gloria Smith, managing attorney at the Sierra Club Environmental Law Program. "One of the core reasons the Sierra Club is joining the ACLU to challenge this national emergency declaration is because we know the damage of negating basic principles of our Constitution will extend far beyond the years of the Trump administration and could be irreversible—for communities and the environment."

The plaintiffs argue that the declaration is dragging the nation toward constitutional crisis and lawlessness. "Congress' refusal to fund Trump's wall isn't an emergency, it's democracy," says Dror Ladin, staff attorney with the ACLU's National Security Project. "We're in court to put an end to Trump's desperate bid to build his wall at the expense of taxpayers, border communities, and the rule of law."

While a federal court deliberates in the case over Trump's national emergency and border wall, the administration has said it is working to restrict the federal district courts' ability to rule on executive policy that affects the whole nation.

Vice President Mike Pence declared in a speech last week at a meeting of right-wing advocacy group the Federalist Society that "the Supreme Court of the United States must clarify that district judges can decide no more than the cases before them."

Pence claimed that federal judges have ruled to target the Trump administration with more injunctions than ever before—on federal policies concerning everything from immigration to reproductive health-care restrictions.

"In the days ahead, our administration will seek opportunities to put this question before the Supreme Court," Pence said in his address Wednesday.

It remains unclear exactly how the administration would ask the Supreme Court to restrict the role of the federal courts in adjudicating cases involving executive policy. The administration has, in the recent past, asked the court to take up a case barring cooperations between local law enforcement and federal immigration agents that could offer the White House more authority to circumvent state and local sanctuary policies. It could be that the administration will ask the justices to rule on any given case involving Trump administration policy and that such a ruling could bind federal judges from blocking executive policy.

Ladin suggests that the White House take another tack regarding the slew of injunctions blocking its policies. "The appropriate response to nationwide illegality is not to limit courts' ability to provide a remedy, but to stop the nationwide illegality," he says.

Experts observe that there is indeed room for the Supreme Court to reshape the way that federal judges rule in cases involving executive rulings. "There is no definitive word from the Supreme Court as to the practice's constitutionality," says Pratheepan Gulasekaram, an immigration law professor at Santa Clara University.

Even a conservative-leaning court, reshaped by Trump picks Neil Gorsuch and Brett Kavanaugh, may shy away from a ruling that could cost the right under a leftist administration. Ahead of Trump's national emergency declaration on February 15th, Democratic Speaker of the House Nancy Pelosi warned that using the declaration would set a precedent that might allow future Democratic presidents to bypass Congress to achieve their own policy goals. In the case of federal courts stopping Trump administration policy, the more unchecked power the Supreme Court claims for the executive branch, the more the court's conservative justices may serve to empower its opponents in future administrations.

If those on the right fear that federal judges are hindering the Trump administration's policies, Gulasekaram says they have only the right to blame. It was the right that laid the groundwork for the sort of injunctions that temporarily halted policies like Trump's travel bans targeting the citizens of Muslim-majority nations.

"The irony of Pence calling for an end to the practice is that the recent rise in the number of such injunctions issued by district courts was kicked off by conservative plaintiffs asking courts to issue them in cases challenging Obama administration policies like the Deferred Action for Parents of Americans plan and the Department of Education's guidance on transgender students in public schools," Gulasekaram says. "That same tactic of asking a single district court to stop the federal government from enforcing a policy nationwide, has now been adopted by those challenging Trump administration policies."

In the pending case on Trump's controversial national emergency declaration and the southern border wall, Gulasekaram believes that there is "a very strong case against the legality of the president's actions." He anticipates that, while it's unlikely that the court will rule on whether an emergency at the border exists and whether the emergency was declared in earnest, it is likely to rule against the use of that emergency to intervene in congressional budgetary appropriations.

"The underlying statute—the National Emergency Act—does not lay out specific criteria for the declaration, and perhaps a court might be unwilling to try to give teeth to that definition in a way that would deem Trump's declaration unlawful," he says. "But I think the important thing to remember is that, even if a court is unwilling to tackle, head-on, the question of whether the situation at the border constitutes an actual emergency under the NEA, it can still rule that using an emergency declaration to move funds in a way disapproved by Congress is unconstitutional."

The federal court will begin deliberations on the border wall case in coming days. It remains to be seen whether its ability to halt the national emergency that is funding the wall will be hamstrung before the judge rules.