Trump’s national emergency declaration could put courts on the spot, scholars say

The pending legal battle between President Donald J. Trump and a California-led coalition of 16 states over his emergency declaration to build a border wall has the potential to create disruptive legal precedent.

The complaint, filed Monday, is one of several squarely taking on the deference traditionally shown to presidents in declaring emergencies. But the most-often cited relevant legal precedent may have been partially superseded by a more recent federal law, with neither one seeing such a significant court challenge in decades.

The order seeks to divert $6.7 billion, mainly from U.S. Department of Defense anti-drug and construction funds. The complaint seeks to establish standing by showing California and other states will be harmed by the loss of those funds. State of California v. Donald J. Trump, 19-CV00872 (N.D. Cal., filed Feb. 18, 2019).

Some legal scholars have cautioned against relying too heavily on Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952), a case in which the U.S. Supreme Court denied President Harry Truman’s order to appropriate the nation’s steel mills through a wartime emergency order.

This is partly because of the National Emergencies Act. Passed a generation later, some commentators have said it codified the president’s authority to declare an emergency.

Not so, said UC Hastings College of the Law professor Joel R. Paul. Instead, it referenced existing authority elsewhere in federal law. He added that the decision was made despite a clear national emergency in the form of the Soviet threat and Korean War.

“The court said Congress considered this and didn’t give the authority; tough luck,” Paul said. “This is Youngstown all over again.”

Paul also said any federal official who tries to carry out Trump’s wishes may violate the Anti-Deficiency Act of 1884.

“This is one of the provisions under which Oliver North was indicted for misappropriating funds for the Contras,” he said.

California Attorney General Xavier Becerra and his allies in the case limited themselves to a single mention of Youngstown in the 57-page complaint, arguing “The President is at the lowest ebb of his power if he acts contrary to the expressed or implied will of Congress.”

By contrast, it contains a five-page section on the Emergencies Act, beginning with the contention it “was enacted by Congress in 1976 to rein in, rather than expand, the power of the president.” But the complaint then cites congressional testimony at the time, rather than the act itself, to argue the law was not meant to be used for “frivolous or partisan matters.”

The law did not specifically define an emergency. Some Trump supporters have correctly noted that every president since has declared at least two.

No court has ever overturned an emergency declaration under the law, noted Michael W. McConnell, director of the Constitutional Law Center at Stanford Law School.

“It is an open question whether the declaration of an emergency is judicially reviewable,” McConnell wrote in an email. “The statute calls for congressional review of the presidential order, which may be an indication that Congress envisioned only a political remedy for potential abuse.”

While Trump “should receive a high level of deference, his own carelessness with language may be his biggest legal risk,” McConnell added.

Indeed, the complaint appears to use Trump’s own words in an effort to create a narrow path for courts to follow. It cites more than four years of tweets by Trump which it says are contradicted by “the federal government’s own data.”

This is one of several ways in which the complaint mirrors current political debates. Even the choice of venue, within the purview of the 9th U.S. Circuit Court of Appeals, was criticized by Trump last week when he announced the national emergency and the expected legal challenges. The president said he would likely lose all the way to the U.S. Supreme Court.

But justices at all levels might be reluctant to produce an opinion that would radically expand or contract presidential powers.

“It’s going to be an argument over constitutional authority,” said John H. Minan, an emeritus professor at UC San Diego School of Law.

The act and related law place limits on use of military construction funds. Section 2808 of the U.S. Code limits the use of emergency funds to “emergencies requiring the use of the armed forces.”

“The circumstances in which the Section 2808 authority could be used to deploy fencing along the border appears to be a question of first impression, and one that is likely to be vigorously litigated,” wrote legislative attorney Jennifer K. Elsea in a January article for the Congressional Research Service.

Late Tuesday, the Sierra Club and the ACLU also sued the Trump administration the Northern District of California to challenge the emergency declaration.