On February 15, 2019, President Trump followed through on a threat to declare a national emergency under the National Emergencies Act (NEA) of 1976 and to invoke emergency powers in order to secure additional money for construction of a wall along the southern border. Congress—holding the “power of the purse” granted to it by Article I of the U.S. Constitution―had repeatedly refused to grant Trump the funding he sought to build the wall. At the same time that Trump announced his intention to use emergency powers, he also announced that he would divert funds from other programs that do not require the declaration of a national emergency, such as funds set aside for drug interdiction programs (10 U.S.C. § 284) and funds obtained through asset forfeiture programs (3 U.S.C. § 9705). In total, Trump announced an intention to commandeer approximately $6.5 billion that Congress had not allocated for border wall funding.
The specific emergency power Trump invoked was 10 U.S.C. § 2808, which allows for the diversion of funds for “military construction projects” when there is a “national emergency” that “requires the use of the armed forces,” and when the military construction is “necessary to support” such use. Trump has proposed moving $3.6 billion from other military construction projects to support border wall construction under this provision.
Various organizations and individuals responded to the emergency declaration by filing suit in different federal courts. The Brennan Center has filed amicus curiae briefs in several of these cases. Drawing on the Center’s extensive research in this area, the briefs demonstrate that the president’s use of emergency powers, in the absence of a true emergency and for the express purpose of subverting the will of Congress, is contrary to both Congress’s intent in enacting the NEA and to forty years of post-enactment practice. The briefs also highlight the dangers that would be posed by allowing Trump’s declaration to stand, in light of the dozens of other emergency powers that could be similarly abused.The Brennan Center has filed amicus briefs in the following cases:
- United States House of Representatives v. Steven T. Mnuchin, et al. in the Federal District Court for the District of D.C. Amicus brief representing the Brennan Center for Justice in support of plaintiff’s motion for a preliminary injunction filed April 30, 2019.
- Update: On June 3, 2019, the District Court denied the House’s motion for a preliminary injunction, ruling that the legislative branch lacks standing to sue executive branch agencies regarding their use of funds. The House appealed the decision to the D.C. Circuit Court a week later. (February 11, 2020)
- Update: On February 18, 2020, a three-judge panel of the D.C. Circuit Court heard oral arguments. Following the arguments, the D.C. Circuit Court filed an en banc order on March 13, 2020 to rehear United States House of Representatives v. Mnuchin and Committee on the Judiciary of the United States House of Representatives v. McGahn, due to the common Article III issue in both of these cases. These cases are scheduled for oral argument before the en banc court on April 28, 2020. (April 30, 2020)
- Update: In August 2020, the D.C. Circuit, sitting en banc decided the McGahn case and remanded this case back to the original panel for further proceedings in light of McGahn. In September, the panel held that the House of Representatives did have standing to raise constitutional claims, and remanded the case back to the district court for further proceedings.
- Sierra Club and Southern Border Communities Coalition v. Donald J. Trump, et al. in the Federal District Court for the Northern District of California. Amicus brief representing the Brennan Center for Justice and The Cato Institute in support of plaintiff’s motion for preliminary injunction filed May 2, 2019.
- Update: On May 24, 2019, the District Court for the Northern District of California partially granted the Sierra Club’s motion for a preliminary injunction. The court ruled that the government’s use of certain reprogrammed non-emergency funds is likely unlawful, and deferred consideration of the lawfulness of the government’s proposed use of emergency funds. The government appealed to the Ninth Circuit Court of Appeals for a stay of the preliminary injunction, which the Ninth Circuit denied on July 3, 2019. On July 26, 2019, however, the Supreme Court granted the government’s application for a stay pending further proceedings, hinting that the plaintiffs might lack standing to sue. On December 11, 2019, the District Court granted in part a motion for summary judgment, holding the government’s use of emergency funds to be unlawful, and issued a permanent injunction halting the disbursement of those funds, but stayed the permanent injunction pending appeal in accordance with the Supreme Court’s July 26th order. The Ninth Circuit then declined to lift the stay in a ruling on December 20, 2019. The appeal is now before the Ninth Circuit on the merits. (February 11, 2020)
- Update: On February 20, 2020, the Brennan Center for Justice and The Cato Institute filed an amicus brief in support of the plaintiffs-appellees in the combined cases Sierra Club, et al. v. Donald J. Trump, et al. and State of California, et al. v. Donald J. Trump, et al. in the U.S. Court of Appeals for the Ninth Circuit. (February 20, 2020)
- Update: On October 9, 2020, the U.S. Court of Appeals for the Ninth Circuit upheld the permanent injunction against the use of emergency powers to fund construction of the border wall. The panel, on a 2–1 vote, held that the Trump administration had not satisfied two of 10 U.S.C. 2808’s requirements in the border wall construction projects: “they are neither necessary to support the use of the armed forces, nor are they military construction projects.”
- County of El Paso, Texas and Border Network for Human Rights v. Donald J. Trump, et al.in the Federal District Court for the Western District of Texas. Amicus brief representing the Brennan Center for Justice in support of plaintiffs’ motion for summary judgment filed May 2, 2019.
- Update: In a decision from October 11, 2019, the District Court for the Western District of Texas granted summary judgment to plaintiffs on the ground that the administration’s attempt to reprogram funds for border wall construction violated appropriations law. On December 10, 2019, the court permanently enjoined the government from using funds beyond the $1.375 billion that Congress appropriated for the border wall. The government appealed and the Fifth Circuit Court of Appeals stayed the permanent injunction in a decision on January 8, 2020 pending a decision on the appeal. (February 11, 2020)
- Update: Amicus brief representing the Brennan Center for Justice in support of plaintiffs-appellees filed April 3, 2020 in the U.S. Court of Appeals for the Fifth Circuit.
- Center for Biological Diversity, et al. v. Donald J. Trump, et al. in the Federal District Court for the District of D.C. Amicus brief representing the Brennan Center for Justice in support of plaintiffs filed May 29, 2019.
- Update: On December 16, 2019, the court held a joint hearing with Rio Grande v. Trump regarding a motion to dismiss both sets of plaintiffs’ complaints. (February 11, 2020)
- Rio Grande International Study Center, et al. v. Donald J. Trump, et al. in the Federal District Court for the District of D.C. Amicus brief representing the Brennan Center for Justice in support of plaintiffs filed August 16, 2019.
- Update: On December 16, 2019, the court held a joint hearing with Center for Biological Diversity v. Trump regarding a motion to dismiss both sets of plaintiffs’ complaints. (February 11, 2020)
- State of Washington v. Donald J. Trump, et al. in the Federal District Court for the Western District of Washington. Amicus brief representing the Brennan Center for Justice in support of plaintiffs filed November 1, 2019.
- Update: On January 23, 2020, the District Court for the Western District of Washington held oral argument on the State of Washington’s motion for summary judgment. (February 11, 2020)