After unveiling his intention to declare a national emergency that would allow him to redirect some $7 billion in additional funding for his border wall, President Trump said Friday that “we will be sued…and we will possibly get a bad ruling…and then we will get another bad ruling…and then we will end up in the Supreme Court” over the controversial plan, which even some Republican Senators (and former campaign-era rivals) have denounced as potentially unconstitutional. Of course, Trump is used to legal challenges to his policies. And he’s also used to winning, as he ultimately prevailed during the battle over his travel ban (though the final measure approved by the Supreme Court was notably watered-down).
After Trump launched into a lengthy digression about the lengthy legal process upon which he was about to embark, several commentators noted, the challenges will offer Trump the opportunity to utter one of his favorite phrases: “See you in court.”
But while the battle over Trump’s travel ban only took a few months to resolve, Politico speculated on Friday that the battle over Trump’s national emergency declaration could take months or even years, as the step of trying to block a presidential emergency declaration would represent something totally unprecedented in the history of American politics.
Rather than solely worrying about a challenge from Congressional Democrats, Politico warned that a number of interest groups could try to kill the national emergency declaration. These include – but are not limited to – immigrant rights advocates, property rights activists, environmentalists, Democratic lawmakers and state officials.
Already, Reuters reported on Friday that New York’s state attorney general has threatened legal action against over the emergency declaration.
“We will not stand for this abuse of power and will fight back with every legal tool at our disposal,” New York’s Attorney General Letitia James said in a statement.
And California Gov. Gavin Newsom has already declared that the State of California “will see Trump in court.” And the state’s attorney general vowed before Trump’s announcement that, if the president moves ahead with his plans, he “will be held accountable.”
California Attorney General Xavier Becerra, who has filed dozens of suits against Trump administration policy moves, added: “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. No one is above the law.”
As Politico explains, while judges have sometimes tried to block Congressionally authorized spending, historically it has been almost unthinkable for judges to interfere with a national emergency declaration. However, given “Trump’s history of erratic and inflammatory statements, his frequent rhetorical disconnects with senior officials in his administration and his tendency to see crises that others view as completely contrived” legal experts believe the challenges could make some headway…and that the issue could ultimately be decided by the Supreme Court after a lengthy meandering through the lower courts. Because the chances that challengers can find a circuit court willing to hold up the emergency declaration are seen as very high.
“Normally, any other time, you’d say it’s a no-brainer that the president wins,” at least with respect to the decision to declare an emergency, said Bobby Chesney, a University of Texas law professor. “But with this particular president, no bets are safe in assuming the courts will completely defer to him…Presidents traditionally get tremendous deference, but Trump is not going to get the same level of deference.”
“That really strips away the core rationale…and creates much more chance than normal that even at that initial step there’s a non-negligible chance that [Trump’s plan] could be rejected,” Chesney said.
But politics aside, legal experts who spoke with Politico said property owners along the planned rout of the wall might have the best standing for a successful legal challenge.
Legal experts said affected property owners would have the clearest legal standing, but just what property is in most jeopardy of seizure by eminent domain may be unclear at the outset if the administration is vague about its construction plans.
On the other hand, the House may be well positioned to file suit almost immediately on a theory that it is being unconstitutionally bypassed. Lawyers say the House’s legal authority to sue on that basis is shakier than that of a private landowner who has his or her land seized. However, in 2015 a federal judge ruled than the then-GOP-led House had legal standing to sue over purportedly unauthorized cost-sharing payments to insurance companies under Obamacare.
But as with all of Trump’s previous legal challenges, Trump will likely be able to frame the resistance to his plans as grist for his reelection campaign.
Analysts also noted that even setbacks for Trump in the legal battle may amount to political victories for him, as he paints himself as fighting hard against a variety of legal and political forces trying to frustrate him at every turn.
“He’ll be able to campaign against the backdrop of what the courts are doing to stop him,” predicted Chesney, the University of Texas law professor.
But while it’s tempting to view conservative dominance on the Supreme Court as indicating that a political victory by Trump is virtually assured, Politico pointed out that an Obama appointee whom Trump had repeatedly attacked as biased over his Mexican heritage recently handed Trump a big legal win over his wall prototype and replacement projects, which Trump heralded as a “big win”.
There’s no guarantee that the Supreme Court might offer a similarly surprising ruling.