President Trump is facing an increasing number of legal challenges to his border wall.
The Trump administration last week was hit with three attempts in 24 hours, including a lawsuit filed by House Democrats, to block construction of the wall.
Those challenges argue that the president’s declaration of a national emergency to divert billions in federal funds to build his long-promised border wall is in violation of Congress’s constitutional authority on appropriations.
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The groups behind the lawsuits are counting on federal judges to side with them and order that any construction of the wall be immediately stopped.
But administration officials, including now-ousted Homeland Security Secretary Kirstjen Nielsen, have said the situation at the U.S.-Mexico border constitutes a crisis. They point to a surge in border crossings in arguing that it was necessary for Trump to declare a national emergency.
The administration is expected to use that line of reasoning when defending the cases in court.
Chris Edelson, an assistant professor of government at American University, said it’s likely officials are making the public argument that a national emergency exists as a way to boost their prospects in court.
He noted that keeping the immigration debate in the public’s eye could work to Trump’s advantage heading into the 2020 election.
“Obviously, it’s something he would like to have as an issue in the presidential campaign,” Edelson said, adding that House Democrats also have a political agenda with their lawsuit.
House Democrats on Friday argued in their lawsuit against Trump that the Constitution says only Congress can appropriate federal funds. And in separate filings from the American Civil Liberties Union and a group of 20 states, a federal judge was asked to grant a preliminary injunction to stop the wall’s construction, with opponents arguing the construction funds were unconstitutionally granted.
The administration has noted in its defense of Trump that the National Emergencies Act — the law he invoked to declare the emergency in mid-February — has been used roughly 60 times since its implementation in 1976.
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And the situation at the border has amplified Trump’s case. The president has threatened to shut down the U.S.-Mexico border, and sent more officials to stand guard at ports of entry.
Nielsen was reportedly asked to resign because of Trump’s frustration with issues including asylum-seekers entering the U.S. and a desire to resume a policy that resulted in separating migrant children from their parents.
But the administration’s potential legal strategy is not without its own pitfalls.
Elizabeth Goitein, co-director of the Brennan Center for Justice’s Liberty and National Security Program, said Trump wouldn’t be able to cite evidence introduced after the emergency declaration to defend his order.
While the lawsuits challenge Trump on whether it’s constitutional for him to divert funds allocated by Congress, they also call into question the rules the president invoked under the National Emergencies Act.
Peter Shane, a law professor at Ohio State University who specializes in separation-of-powers law, said the 1976 statute does not give Trump unlimited powers after declaring a national emergency. Rather, it gives him the authority to draw upon other rules created by Congress.
“It’s as if Congress had created a book of a bunch of recipes that the president is allowed to use only if he formally shouts ‘I’m hungry,’ ” Shane said.
“He still has to pick out the recipes,” Shane said, “and [the courts] have to decide if the recipe’s being followed.”
Trump used a statute that says Defense Department funding can be used for a military construction project in the case of a national emergency that requires use of the armed forces.
But Trump’s opponents argue that the rule only allows for construction projects that are needed to help U.S. troops, and that the border wall doesn’t fall under those limitations.
The lawsuits argue that the military is not needed to address the situation at the border.
Shane said the people challenging Trump might have a better chance if they argue Trump doesn’t have standing to use the statute in that way, as opposed to arguing he violated the Constitution.
Judges are hesitant to issue rulings that curb executive power, he said, but they might be more willing to act on limiting the rules that Trump chose to use in carrying out the emergency order.
“It’s kind of a more comfortable mold in which the court could make its judgment, rather than a separation of powers-based dispute,” Shane said.
Trump has faced bipartisan opposition over his declaration of a national emergency, with several Republicans choosing to vote for a resolution opposing his order. But the president issued the first veto of his administration in rejecting the measure, and the House failed to gather enough votes to begin overturning the veto.
Edelson said it will be difficult for a court to take action over the border wall until construction begins under the national emergency declaration.
The lawsuits are the latest in a series of court battles for the Trump administration, which has repeatedly faced legal fights over implementing its policies. Critics of the administration have turned to the courts to challenge other controversial policies, including Trump’s travel ban for citizens of several Muslim-majority countries, his prohibition on transgender service members and his repeal of the Deferred Action for Childhood Arrivals program.
Goitein said the lawsuits over the emergency declaration will face some hurdles in court, largely because the National Emergencies Act grants Trump a broad set of authorities and doesn’t include a precise definition of what constitutes an emergency.
And there could also be multiple rulings on the legality of the emergency declaration: Two of the lawsuits are assigned to one federal judge in California, while Congress filed its complaint in a D.C. court.
The judge in California, Haywood Gilliam Jr., is an Obama appointee who has previously ruled against the Trump administration over its efforts to create exemptions to the contraceptive mandate set by the 2010 Affordable Care Act.
“I suspect that we will see different rulings from different courts and that ultimately, this will have to be resolved with the Supreme Court,” Goitein said.