WASHINGTON – Public Citizen, a Washington-based consumer group, filed the first lawsuit challenging President Donald Trump’s national emergency declaration concerning the southern border Friday night.
The complaint, lodged in the U.S. District Court for the District of Columbia, says the president’s declaration violates separation of powers principles because there is no emergency at the southern border justifying the invocation of extraordinary powers.
“Every halfhearted and palpably fabricated rationale to justify claims of emergency has been thoroughly and embarrassingly debunked,” said Public Citizen president Robert Weissman. “Unauthorized immigration is not surging. Terrorists are not invading from Mexico. Illegal drug traffic is coming primarily through legal ports of entry, not open border areas.”
The plaintiffs are three Texas landowners who were informed that the government will construct border barriers on their property. They are joined by the Frontera Audubon Society, an environmental group that operates a 15-acre nature preserve in the Rio Grande Valley.
The landowners say they will lose the use of their property if wall is built, and fear damage to their homes during the course of construction. The Frontera Audubon Society warns of lasting damage to a critical animal habitat and claims its members will lose the opportunity to “birdwatch and experience nature along the [Rio Grande].”
The plaintiffs argue that the situation at the southern border does not rise to the level of a national emergency. Since no emergency exists in reality, the complaint says Trump exceeded his authority under the National Emergencies Act and unlawfully repurposed federal funds to erect the border wall.
“Because no national emergency exists with respect to immigration across the southern border, the president’s invocation of emergency powers through the declaration usurps legislative authority conferred by the Constitution on the Congress,” the lawsuit reads.
The president issued several directives Friday to access some $8 billion in federal funds for the border wall. In addition to the $1.4 billion appropriation Congress authorized for border barriers, the administration will reprogram $600 million from the Treasury Department’s forfeiture fund, $2.5 billion from Defense Department counter-narcotics activities, and $3.6 billion from military construction projects to finance construction of the wall.
The government will spend that money sequentially, meaning they will exhaust the congressional appropriation and the Treasury Department forfeiture funds before redirecting Defense Department funds.
The Public Citizen lawsuit seeks an injunction barring acting Defense Secretary Patrick Shanahan from redirecting DOD resources to comply with the Friday directives.
It’s not clear that the plaintiffs can sue at this juncture, however. Since the administration will deplete the congressional appropriation and Treasury Department funds before reprograming Defense Department monies, it may be weeks or even months before DOD funds are reallocated for the border barrier project.
The government has not yet replied to the lawsuit, the first in a deluge of forthcoming legal challenges.
The president also signed a bipartisan spending bill Friday to avoid a second partial government shutdown.
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