On February 15, 2019, Public Citizen Litigation Group filed a Complaint for Declaratory and Injunctive Relief in the United States District Court for the District of Columbia.  

The action seeks declaratory and injunctive relief with respect to President Donald Trump’s declaration of a national emergency, the invocation of emergency powers, and the expenditure of funds to construct a border wall.

The action claims that the emergency declaration for construction of the wall exceeds President Trump’s authority under the National Emergencies Act.

The plaintiffs (who have the necessary standing to sue President Trump) are three landowners located in southern Texas.  The plaintiff-landowners claim they will be harmed by the resulting boarder wall being constructed.  In particular, the plaintiffs claim an “imminent invasion of their privacy and the quiet enjoyment of their land, both during construction and after.”

At issue is President Trump’s declaration of a “national emergency”.

The National Emergencies Act (NEA) “authorizes the president to access “special or extraordinary power” conferred by Congress for use during a national emergency only when a national emergency exists.”  Complaint Par. 30.

In answering a press question about the Declaration, the President conceded that the situation at the southern border does not require a declaration of national emergency. He stated: “I could do the wall over a longer period of time. I didn’t need to do this, but I’d rather do it much faster.” Complaint Par. 31.

The National Emergencies Act (NEA) 50 USC 1621 – Is where the President has authorization.

50 USC 1622 of the NEA shows the procedure for terminating an emergency declaration.  Congress can issue a joint authorization to terminate the Emergency Declaration

(a) Termination methods. Any national emergency declared by the President in accordance with this title [this section and 50 USCS § 1621] shall terminate if–

(1) there is enacted into law a joint resolution terminating the emergency; or

(2) the President issues a proclamation terminating the emergency.

Also at Issue Is President Trump’s Plan to Build the Wall as a Military Construction Project

The Emergency Declaration invokes authority provided under 10 U.S.C. § 2808, which authorizes the Secretary of Defense, in the event that the President declares a national emergency under the NEA, to undertake military construction projects not otherwise authorized by law, using funds appropriated for military construction.  Complaint Par. 32.

10 U.S.C. § 2808(a) only permits military construction projects that are necessary to support use of the armed forces. The lawsuit claims the planned border wall is not a “military construction project” that is “necessary to support … use of the armed forces.” Complaint Par. 33.

10 U.S.C. § 284 Authorizes Spending for Fencing to Block Drug Smuggling

A White House fact sheet issued on February 15, 2019, stated that the President would direct, under 10 U.S.C. § 284, as much as $2.5 billion to the Department of Defense for funding for the wall. Complaint Par. 34.

Section 284(b) authorizes Department of Defense funding to support counterdrug activities. In particular, section 284(b)(7) allows the Secretary of the Department to authorize funding for “[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.” Complaint Par. 35.

The Plaintiffs allege that using Section 284 for a boarder wall does not meet the requirement of being a counter drug activity under the Statute.   “The authorization to transfer funds to construct fencing to block drug smuggling does not authorize use of transferred funds for the construction of the planned border wall.” Complaint Par. 36.

The Complaint alleges three counts of ultra vires separation of powers claims against President Trump, and two counts against the Secretary of Defense for acting beyond powers authorized by statute – relating to the emergency declaration.