Trump Declared a Border Emergency. Here’s How It Could Be Undone in Court.

0217 Wall

Summary

On Feb 15, President Trump declared a national emergency in the White House so he could continue to build a wall along the border with Mexico. Many opponents have raised their criticism of President’s abuse of power. Democratic leaders in Congress have vowed to overturn the emergency declaration. California officials announced that they planned to sue and said they hoped other states would join.

Almost immediately after his declaration, the Texas county of El Paso, together with human rights and pro-democracy groups announced their next move to bring lawsuits against it. They argue that the construction of the wall would harm, rather than save communities along the border, and Mr. Trump had no legal basis for declaring an emergency. The groups challenged the existence of a national emergency at the border, and raised several main issues as the rights of private property owners; tribal sovereignty of Native Americans living along the border; and how far presidential powers extend.

Some of the most strident opposition to Mr. Trump’s wall is expected to come from land owners along the border who face seizure of their property. Landowners in Texas, filed hundreds of lawsuits aiming to block the Bush administration from building fencing along the border, and now the attention may shift farther west to El Paso, which questioned Trump’s claim that border fencing had reduced crime, and joined three political groups in preparing a lawsuit over his declaration.

Another legal battle already underway involves the sovereignty of Native Americans living along the border. Leaders of the Tohono O’odham Nation, whose land in Arizona runs along 75 miles of the border, have already announced opposition to the wall which is alleged to infringe on the right to freedom of movement among the tribe’s members. the Trump administration has been loath to respond to these claims, and it has stopped cooperating with United Nations human rights investigators.

Environmental groups are also mobilizing to fight the wall in court. Though it is not easy to successfully argue a violation of environmental law, it is believed to still have the effect of delaying wall construction in parts of the border.

 

 

 

 

 

Trump Declared a Border Emergency. Here’s How It Could Be Undone in Court.

 

ALBUQUERQUE — Almost immediately after President Trump declared a national emergency on Friday so he could proceed with his ambition to build a wall along the border with Mexico, some of his opponents announced their next move: We’ll see you in court.

 

Citing a dearth of evidence for a border crisis and fears over what is shaping into a colossal seizure of private property by the federal government, the Texas county of El Paso, together with human rights and pro-democracy groups, said on Friday that they planned to file a lawsuit almost immediately seeking to block the declaration.

 

The groups argue that communities along the border would be harmed, not saved, by the construction of the wall, and that Mr. Trump had no legal basis for declaring an emergency. Theirs would be the first in an array of legal challenges already coalescing in an effort to thwart Mr. Trump’s plan.

 

“There is zero factual support for the existence of a national emergency at the border,” said Thomas A. Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, one of the groups preparing to challenge Mr. Trump in court. The declaration, Mr. Saenz added, “would be a laughable object of ridicule were it not so dangerous.”

 

The brewing legal battles are likely to focus on such issues as the rights of private property owners; tribal sovereignty of Native Americans living along the border; and how far presidential powers extend.

 

Mr. Trump predicted during his declaration of the emergency that he would face legal obstacles. “Sadly we’ll be sued, and sadly it will go through a process, and happily we’ll win,” he said.

 

Courts have been grappling for at least a decade with lawsuits involving the Secure Fence Act of 2006, legislation passed under former President George W. Bush that authorized the construction of about 700 miles of barriers and fencing along the border with Mexico. Dozens of lawsuits filed by property owners challenging that project are still unresolved.

 

The emergency declaration stands in contrast to that previous construction initiative because Congress this week refused in its bipartisan budget deal to allocate the funds needed to build the kind of wall the president wants. With Mr. Trump determined to go forward, these are just some of the legal battles that are expected.

 

Private Property Owners

If the festering tension in South Texas over the last decade is any indication, some of the most strident opposition to Mr. Trump’s wall is expected to come from owners of land along the border who face seizure of their property by the federal government to build it.

 

Landowners in Texas, largely in the Rio Grande Valley, filed hundreds of lawsuits aiming to block the Bush administration from building fencing along the border. Some property owners opposed the government’s seizure of their land, while others said the compensation offered by federal authorities was too low.

 

Attention may now shift farther west to El Paso. Broad criticism of Mr. Trump in that city, a Democratic bastion in a state otherwise largely dominated by Republicans, emerged in recent days over the president’s widely discredited claim that border fencing had reduced crime there.

 

l Paso County, which encompasses the city of El Paso and is home to about 800,000 people, joined the Border Network for Human Rights; Protect Democracy, a group aiming to curb authoritarian-style politics; and the Niskanen Center, a nonpartisan think tank, in preparing a lawsuit over Mr. Trump’s declaration.

 

Ricardo Samaniego, who heads the governing county court of commissioners, said that Mr. Trump’s emergency declaration “will further damage El Paso County’s reputation and economy, and we are determined to stop this from happening.”

 

Precedent suggests that those living in the path of the planned wall may have a difficult time challenging it in court: Landowners have lost nearly all of the earlier cases aimed at preventing the federal government from seizing their property, though some ended up securing more compensation than initially offered.

 

Political Opponents

Democratic leaders in Congress have vowed to overturn the emergency declaration. “This is plainly a power grab by a disappointed president, who has gone outside the bounds of the law to try to get what he failed to achieve in the constitutional legislative process,” Speaker Nancy Pelosi of California and Senator Chuck Schumer of New York, the minority leader, said in a joint statement.

 

California officials announced on Friday that they planned to sue and said they hoped other states would join. “The president is exploiting a serious law,” the state’s attorney general, Xavier Becerra, said at a news conference with Gov. Gavin Newsom. “There is no emergency here for the nation.”

 

Mr. Newsom said that California would be affected by construction of a wall more than any other state. “Fortunately Donald Trump is not the last word,” he said. “The courts will be the last word.”

 

Tribal Sovereignty

Another legal battle already underway involves the sovereignty of Native Americans living along the border.

 

Leaders of the Tohono O’odham Nation, whose land in Arizona runs along 75 miles of the border, have already announced opposition to the border wall by taking their fight to the Inter-American Commission on Human Rights, a part of the Organization of American States aimed at preventing rights abuses.

 

Tohono leaders say that a wall infringes on the right to freedom of movement among the tribe’s members, who live on both sides of the border. Verlon M. Jose, vice chairman of the Tohono nation, has said that the Trump administration would have to build the wall “over my dead body.”

 

The Tohono O’odham’s petition at the human rights commission seeks to impede more wall construction. Other tribes along the border, including the Kickapoo in Texas, the Kumeyaay in California and the Cocopah in Arizona, are examining how to proceed after Mr. Trump’s declaration.

 

Still, the Trump administration has been loath to respond to claims of rights abuses, and it has stopped cooperating with United Nations human rights investigators.

 

That could mean that tribes need to rely on the legal system in the United States to resolve differences over the wall.

 

Environmental Resistance

Environmental groups are also mobilizing to fight the wall in court, but recent legal decisions raise doubts about their ability to successfully argue that federal authorities are circumventing environmental laws.

 

The Supreme Court declined in December to hear a challenge by conservation groups to the proposed wall construction in California, leaving in place a ruling by a federal judge in San Diego that allowed construction to proceed.

 

The plaintiffs in that case argued that the wall would violate environmental laws and imperil habitats for some animals. They unsuccessfully challenged a 1996 law that allows the Department of Homeland Security to waive other laws in order to build walls or barriers on the border.

 

Even if an environmental challenge might have an uphill climb in the courts, it could have the effect of delaying wall construction in parts of the border, potentially for months or years.

 

“I expect legal challenges to tie this up for a long time,” said Cristina Rodriguez, a professor at Yale Law School. “The president and his people are aware of this, but they may care more about the optics of the wall than what actually happens on the border.”

 

 

Source: The New York Times, Simon Romero, Feb.15, 2019. Photo credit to Caitlin.