Trump claimed the border wall was a matter of national security and used an emergency declaration to obtain the funds. This was after Congress denied funding for wall construction to the administration.
In February 2019, Trump told reporters that calling for a national security emergency wasn’t really necessary.
“I want to do it faster,” Trump said. “I could do the wall over a longer period of time. I didn’t need to do this, but I’d rather do it faster.”
While the Supreme Court allowed construction of the border wall to begin, it has yet to issue a final ruling on the case. No determination has been made about the legality of building the wall.
If the wall is built as planned, communities along the border would be negatively impacted, wildlife would be endangered and environmental risks would be posed, the lawsuit alleged.
Gloria Smith, managing attorney for the Sierra Club has seen some of that damage in person, particularly Organ Pipe National Park in Arizona.
“The impacts to that park are irreparable,” Smith told Newsweek in a phone interview. “These cacti are hundreds of years old. It is just a stunning place, and they literally are bulldozing as we talk. That can never be put back.
The lawsuit alleged that Trump’s emergency declaration circumvents the 2019 Appropriations Act which did not grant the president’s request for $5.7 billion to build the wall. Trump may have also violated the Presentment Clause by signing the 2019 Appropriations Act and then ignoring it by declaring a national emergency.
The Presentment Clause requires every law to be presented to the president for either a signature or a veto.
“President Trump agreed to the Consolidated Appropriations Act of 2019,” Smith said. “He signed it, then turned around the very next day and declared a national emergency based on legislation he signed. No one has ever seen anything like that before.”
“Because of Article I,” she explained, “which says that Congress has the power of the purse, this is a direct violation of the Constitution. The administration does not get to appropriate funds. They don’t have that power. Every dollar has to be appropriated by Congress or it’s unlawfully spent.”
Violations of the National Environmental Policy Act may also have occurred, as the expedited construction of the wall has not taken into consideration the impact it would have on surrounding wildlife and biomes.
There is also a belief that the “hypermilitarization of the border wall” may heighten anti-immigrant sentiment, furthering the marginalization of communities of color near the wall.
“In places like the Rio Grande Valley in Texas,” Smith said, “the administration is proposing to build a border wall, in some cases, over a mile away from where the actual border is.” She added that places that residents have enjoyed, such as parks and chapels, would be inaccessible.
“Those places would be under lock and key on the other side of this 30-foot wall,” Smith said.
For their part, the government claimed that plaintiffs would not be harmed by the wall construction because their interests lie outside of the zone that will be affected. The administration also claimed that the case did not raise constitutional issues, but statutory ones.
Trump’s legal team also alleged that a presidential national emergency declaration could not be argued because courts cannot decide where best to place military forces. Action against the president cannot be undertaken in the judicial system because courts cannot second guess discretionary judgments of the president that are authorized via statute.
“It’s been the administration’s assertion itself, they point to statutory provisions that allow them to do what they’re doing,” Smith said. “What they are now saying in the Ninth Circuit is that no court has the power to review their actions under these statutes. That is why we have a judiciary.”
“We’re seeing that all across the government right now,” she added, “where private attorneys and Department of Justice attorneys are going into court and saying, ‘I’m sorry, Your Honor. You have no authority to review what this president is doing.’ We’ve never seen this level of unitary executive assertion in most of our lifetimes.”
Arguments are expected to be heard in the Ninth Circuit Court of Appeals, which previously upheld a district court order permanently blocking the usage of emergency funds to build the wall.
“Under the Appropriations Clause,” read a statement by the court, “it is Congress that is to make decisions regarding how to spend taxpayer dollars. Congress did not appropriate money to build the border barriers Defendants seek to build here. Congress presumably decided such construction at this time was not in the public interest. It is not for us to reach a different conclusion.”
The hearing is expected to take place November 12 at 12:30 p.m. EST and should be available to view via livestream.
