16 U.S. states filed a lawsuit in federal court last Monday in response to President Trump declaring a national emergency over border security the week before. The Associated Press reports that the states joining the attorney general of California in this lawsuit are Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, and Virginia, all states with Democratic attorney generals. President Trump’s decision to declare a national emergency came after the federal budget for 2019 passed Congress without allocating money for the border wall. This move concluded the debate over Congressional funding for the construction of a border wall, the controversy over which resulted in the longest-ever government shutdown after Congress initially failed to pass a budget resolution.
The California attorney general, Xavier Becerra, announced the lawsuit on Monday, saying of Trump that “he knows there is no border crisis, he knows his emergency declaration is unwarranted, and he admits that he will likely lose this case in court.” A recent NPR poll found that 61% of Americans disapprove of Trump’s national emergency declaration on border security, and the states’ lawsuit is one of several challenging the declaration in court. Concerns have emerged over the legal standing of the states to sue. The Wall Street Journal quotes multiple legal experts on the question of how the verdict will ultimately turn more on questions of standing and judicial authority over issues of national security, than on questions interpreting the law allowing Presidents to declare national emergencies. The states cite environmental damage as well as the diversion of funds for other projects as harms that they will suffer due to the emergency declaration. Harvard law professor Mark Tushnet said of the case brought by the states, “it’s not a slam dunk for them, but there’s a decent chance they will ultimately prevail.” Still, legal experts commenting on the case have emphasized that it will be a prolonged legal battle with the potential to reach the Supreme Court, potentially dragging into the next few years.
There is widespread consensus that there is no immediate crisis at the border, and the states have seized upon President Trump’s own words, particularly his statement that he “could have done this over a longer period of time. I didn’t need to do this.” Interviews with inhabitants of border towns conducted by the New York Times have reported that life is mostly as usual, although illegal crossings at the Mexican border have been consistently declining since the early 2000s. However, the “humanitarian crisis” relating to American border policy that President Trump refers to is real, just not in the way he intends it. Mexicans and Central Americans of all ages, fleeing from gang recruiting, drug violence, desolate economic prospects, and other situations often involving extreme violence and poverty, face an arduous and incredibly dangerous trek through the Sonoran desert to reach the U.S.-Mexico border, and thousands of people have died in the border regions since the early 1990s. Numerous reports of U.S. Border Patrol destroying life-saving stocks of food and water left in the desert for migrants have emerged, and activists from No Mas Muertes (No More Deaths), an Arizona aid group working on the border, have been repeatedly arrested for providing food and shelter to undocumented immigrants in need. This humanitarian crisis has been exacerbated by the Trump administration’s cruel policies of family separation, and a border wall will not stop the flow of migrants and asylum seekers, particularly when vast portions of the border are already fenced and patrolled. The national emergency declaration to allocate border wall funding is nothing but a racially charged waste of money intended to serve as a monument to Trump’s presidential power in the lead-up to the 2020 presidential election.
Both Republican and Democratic senators have decried the use of the national emergency declaration to bypass Congress’s decision not to dedicate funding for the wall in the federal budget. The Washington Post reports that a bipartisan group of 58 former national security officials released a statement Monday morning denouncing the declaration. “Under no plausible assessment of the evidence is there a national emergency today that entitles the President to tap into funds appropriated for other purposes to build a wall at the southern border,” the statement asserts, with signatories prominent in the Clinton, Bush, and Obama administrations, including John Kerry and Madeleine Albright, both former secretaries of state. Concerns have also emerged about the President using the national emergency power to fund a border wall after such an allocation was expressly rejected by Congress in a fight that shut the government down for 35 days, pointing to the constitutional power of Congress over appropriations.
While there is a crisis at the United States’ southern border, it is not the kind that President Trump describes, with its racist imagery of dangerous, drug-toting immigrants used to justify horrific practices of family separation and the destruction of humanitarian aid supplies. The lawsuit brought last week by 16 states is an important challenge to President Trump’s reckless disregard for the separation of powers and the spending of taxpayer money. However, the suit’s outcome will ultimately rely less on the legitimacy of Trump’s border policy or his abuse of emergency powers than on more arcane judicial questions and a lengthy process of appeals.