The Department of Justice informed the White House that any attempt to build a border wall through executive action, an avenue President Donald Trump is expected to pursue, would be challenged in the court system almost immediately.
ABC News cited a senior White House official as saying the warning was passed along, but that the Trump administration thinks it would prevail in any legal case that’s filed.
Lawmakers struck a deal to fund the Department of Homeland Security through September. The bill, which passed in the Senate Thursday, is expected to pass in the House. The White House said Trump would sign the measure, which would allocate just under $1.4 billion to fund a border barrier between the United States and Mexico.
Trump originally asked for $5.7 billion in wall money, so he will likely declare a national emergency and use discretionary funds to build more than 200 miles along the Southern border. The money in the border bill will allow the construction of about 55 miles.
House Speaker Nancy Pelosi has already threatened to take legal action against the Trump administration if the president goes the national emergency route.
Expect a long legal fight possibly stretching into Trump’s 2020 re-election bid, and embolden critics who already accuse him of authoritarian tendencies and unpredictable swerves in policy-making.
Congressional Democrats are already vowing legal challenges. They have balked at giving Trump money for what they say is a wasteful and unnecessary wall.
Trump made his promise to build a wall and have Mexico pay for it a centerpiece of his 2016 presidential campaign. The Mexican government has refused to pay.
Under the Constitution, decisions about spending taxpayer funds and creating policy are typically made by Congress.
But a 1976 law allows the president to bypass Congress and redirect funds in the event of a national emergency. The National Emergencies Act does not define “emergency,” giving the president broad discretion to declare one, legal experts said.
The law empowers Congress to override an emergency declaration, but that requires action by both chambers, which would be hard to get since the Senate is run by Trump’s fellow Republicans and the House of Representatives by Democrats.
The United States currently has about 30 national emergency proclamations in effect, including ones related to the Iran hostage crisis of 1979 and the swine flu pandemic in 2009.
Congress has made a wide range of special powers available to a president who declares a national emergency.
One law allows the president to redirect U.S. Department of Defense construction funds that have not yet been allocated.
Another enables the U.S. Army to halt civil projects and instead apply the funds and personnel to projects “essential to the national defense.”
There are few court cases on the scope of the president’s emergency powers, and legal experts are split.
Robert Chesney, a professor of national security law at the University of Texas, said a legal challenge on those grounds might succeed but that the courts typically showed deference to the president on national security matters.
Elizabeth Goitein, a lawyer at the Brennan Center for Justice, said there were strong arguments that border wall construction is impermissible under various statutes granting the president emergency powers.
Individuals or businesses with contracts canceled because of a redirection of military funds might be better placed to challenge the president in court, as would private landowners whose property might be seized, Chesney said.
FINDING THE MONEY
A practical issue for Trump, even if he could credibly argue an emergency exists, is that he would need to get his wall money out of whatever funds are left over from a pool of about $10.4 billion in military construction projects during the current fiscal year, which ends on Sept. 30.
The U.S. military has not disclosed how much funding might be left over in its military construction budget. It was unclear whether any cash still available would be enough to make significant headway in building the border wall.
Material from Reuters was used in this story.