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DOJ Warns White House About Emergency Declaration

Courts expected to block border wall move
By Rob Quinn,  Newser Staff
Posted Feb 15, 2019 6:09 AM CST

(Newser) – President Trump says he will sign an emergency declaration to secure funding for a border wall—but he has been warned that the move is likely to encounter a wall of lawsuits from Democrats, immigration advocates, and environmentalists, among others. Sources tell ABC News that the Justice Department has told Trump that the declaration of a national emergency is extremely likely to be blocked by the courts before it can come into effect. Analysts say legal challenges could delay the project for years, though White House officials say they expect to eventually win on appeal. Trump is expected to declare the emergency Friday morning after signing a budget deal that would avert another government shutdown. More:

  • "There is no national emergency." California Attorney General Xavier Becerra, who is expected to challenge the move in court, said Thursday that any border crisis is of "Trump's own making," the Washington Post reports. "There is no national emergency. If Trump oversteps his authority and abandons negotiations with Congress by declaring a fabricated national emergency, we won’t only call his bluff, we will do what we must to hold him accountable," he said. "No one is above the law."

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  • "No bets are safe." Analysts say it would be very unusual for courts to block a president's declaration of an emergency—but Trump is a very unusual president. "Normally, any other time, you’d say it’s a no-brainer that the president wins," University of Texas law professor Bobby Chesney tells Politico. "But with this particular president, no bets are safe in assuming the courts will completely defer to him." Some 58 emergencies have been declared since the National Emergencies Act, 31 of which are still in effect.
  • The price tag. Sources tell the AP that Trump will announce he will spend $8 billion on border barriers after sidestepping Congress—including the $1.4 billion the latest spending bill provides. Most of the rest is expected to come from military funds earmarked for construction and antidrug efforts.
  • Stopping the move in Congress. It is possible, but highly unlikely, for the move to be blocked by Congress, the BBC reports. It would require both houses of Congress to pass a resolution against it, which Trump could veto unless opponents can build a supermajority.

  • Republicans speak out. Senate Majority Leader Mitch McConnell has done a U-turn and announced that he will support an emergency declaration, but several other Republican senators have spoken out against the move, the Hill reports. Sen. Susan Collins said Thursday that she believes the decision is of "dubious constitutionality." "I don’t believe that the National Emergencies Act contemplated a president repurposing billions of dollars outside of the normal appropriations process," she said.
  • "A Democratic president can declare emergencies as well." House Speaker Nancy Pelosi called the move a "lawless act" and warned Trump that he was creating a precedent that could lead to a Democratic president declaring a national emergency on guns, CNBC reports. "If the president can declare an emergency on something he has created as an emergency, an illusion that he wants to convey, just think about what a president with different values can present to the American people," she said.
  • The Cruz solution. Sen. Ted Cruz says he has a way to build the wall without taxpayers paying a dime. The Republican writes in the Washington Post that he has reintroduced the "Ensuring Lawful Collection of Hidden Assets to Provide Order (EL CHAPO) Act" to use funds seized from Joaquin Guzman and other drug lords to build a border wall.
(Read more border wall stories.)

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