This case addresses the expansion of the southern border wall, a major controversy during the Trump presidency.
On February 16, 2019, three non-profit organizations that defend wildlife and habitats along the southern border—the Center for Biological Diversity, Defenders of Wildlife, and the Animal Legal Defense Fund—filed this lawsuit in the U.S. District Court for the District of Columbia. The case was assigned to Judge Trevor N. McFadden. The plaintiffs, represented by their internal counsel, sued President Trump, the Secretaries of Defense, Homeland Security, the Interior, and the Treasury, and the Chief of Engineers of the U.S. Army Corps of Engineers, under the Declaratory Judgment Act. The plaintiffs sought a declaratory judgment stating that the Emergency Proclamation issued by the President on February 15, 2019 was unlawful, and an injunction preventing the reallocation of funds to construct a border wall.
As relevant background, from December 21, 2018 to January 25, 2019, the federal government was shut down. The shutdown was the result of months of disagreement between the President and Congress over the administration’s $5.7 billion demand for a border wall. Several times during the shutdown and several times after the shutdown ended, the President publicly mentioned that he might declare a national emergency if the administration could not reach an agreement with Congress about border wall funding, describing the declaration as something he had an “absolute right” to do under the National Emergencies Act.
When the President issued the Emergency Proclamation declaring a national emergency at the southern border on February 15, he said at a press conference that same day, “I could do the wall over a longer period of time—I didn’t need to do this—but I would rather do it much faster….I just want to get it done faster, that’s all.” The President then directed the reallocation of up to $601 million from the Treasury Forfeiture Fund, $3.6 billion in unspent funds appropriated for military construction projects, and up to $2.5 billion in unspent funds appropriated for support for counter-drug activity support, towards border wall construction.
The plaintiffs claimed that the President’s issuance of this Emergency Proclamation violated several federal laws. First, they alleged that the President exceeded the scope of his authority under:
- The National Emergencies Act, because the President’s own statements and the totality of surrounding circumstances showed that the proclamation was made as a political negotiating tactic, not a valid “emergency” as Congress intended under the NEA;
- 10 U.S.C. §2808 (Construction authority in the event of a declaration of war or national emergency), because the statute did not provide for the transfer of emergency funds from military construction to border wall construction;
- 10 U.S.C. §284 (Support for counterdrug activities and activities to counter transnational organized crime), because this statute was intended to authorize non-emergency military support to domestic law enforcement and does not provide for emergency funding for border wall construction; and
- 31 U.S.C. §9705 (Department of the Treasury forfeiture fund), because the specific categories of funding for which the Secretary of Treasury has discretion to allocate funds did not cover border wall construction.
Additionally, the plaintiffs claimed that the President had violated the Appropriations Clause of the Constitution by unlawfully reallocating money without Congressional approval, and had violated the Take Care Clause of the Constitution by failing to comply with the requirements and limitations of federal law.
On April 2, 2019, the President moved to dismiss the case, arguing either that the court lacked jurisdiction or, alternatively, that the plaintiffs had failed to state a claim. The plaintiffs filed an amended complaint on April 15, 2019. This complaint added new claims for relief, such as failure to properly create environmental impact statements in violation of the National Environmental Policy Act (40 C.F.R. § 1501.5 and § 1501.6); and unlawful transfer of appropriated funds from counter-drug appropriations in violation the 2019 Consolidated Appropriations Act.
In an April 2, 2020 ruling, the court partially granted the President’s motion to dismiss. Regarding jurisdiction, the court held that all plaintiffs, except for Green Latinos and the Labor Council for Latin American Advancement, had “plausibly alleged standing;” those two groups were dismissed as plaintiffs. The court dismissed some APA claims but allowed others to proceed. It also held that it had no jurisdiction over the challenge to the lawfulness of the President’s emergency declaration, because it was a non-justiciable political question. President Trump was dismissed as a defendant. 453 F. Supp. 3d 11.
On May 29, 2020, the plaintiffs sought summary judgment. The government filed a cross-motion for summary judgment on June 26, 2020. As of July 23, 2020, the court has not ruled on these motions; the case is ongoing.
Sara Stearns - 04/06/2019
Bogyung Lim - 07/23/2020
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