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Trump's National Emergency Just Got Its First Legal Challenge

Legal advocacy group Public Citizen filed suit on behalf of landowners in Texas and an environmental group. More lawsuits are expected.

Last updated on February 15, 2019, at 7:49 p.m. ET

Posted on February 15, 2019, at 7:36 p.m. ET

Alex Wong / Getty Images

WASHINGTON – A consumer advocacy group filed the first lawsuit late Friday challenging President Donald Trump's national emergency declaration, suing on behalf of Texas landowners and an environmental group who say they'll be affected by border wall construction.

The case, filed by Public Citizen in federal district court in Washington, DC, is the first of what are expected to be multiple lawsuits challenging Trump's unprecedented decision to declare a national emergency in order to access $3.6 billion in military construction funds to pay for more sections of the wall he promised to build along the US–Mexico border.

Trump announced the national emergency on Friday in a Rose Garden ceremony. In order to fund wall construction, the administration is also reprogramming $2.5 billion in money marked for Department of Defense counternarcotics efforts and tapping $600 million from the Treasury Forfeiture Fund; neither move requires a national emergency. Combined with the $1.375 billion appropriated by Congress, the administration is set to have access to approximately $8 billion for the wall this year.

Public Citizen is arguing the president exceeded his authority under the federal National Emergencies Act because there is no emergency at the southern border, and that his declaration of a national emergency in order to build the wall violates the separation of powers — essentially, that it's unconstitutional for Trump to declare an emergency because Congress already refused to appropriate the money.

"Rather than responding to an emergency requiring immediate action, the Declaration seeks to address a long-running disagreement between the President and Congress about whether to build a wall along the southwestern border and Congress’s refusal to appropriate funds for that purpose," Public Citizen's lawyers wrote in the lawsuit. "However, under our Constitution, built on the principle of separation of powers, a disagreement between the President and Congress about how to spend money does not constitute an emergency authorizing unilateral executive action."

The three landowners who are plaintiffs in the case said they were told by the federal government that sections of the wall would be built through their properties if funding became available in 2019 — they each said they'd received letters from Customs and Border Protection asking to come on their land to do an assessment. The other plaintiff, the Frontera Audubon Society, is located on a nature preserve in Texas and focuses its preservation efforts on the Rio Grande valley, and they claim that habitat would be harmed by border wall construction.

The lawsuit also challenges the reprogramming of Defense Department counter-drug funds to build a border wall, saying that wasn't authorized under federal law.

Public Citizen is one of several groups that have announced plans to sue the administration, but are the first to file. House Democrats are considering going to court to challenge the emergency, as are Democratic attorneys general. At a press conference Friday, California Attorney General Xavier Becerra said his office was likely to pursue legal action.

Trump acknowledged in his press conference Friday that the national emergency was likely to to lead to lawsuits, predicting, "we will possibly get a bad ruling, and then we'll get another bad ruling, and then we'll end up in the Supreme Court, and hopefully we'll get a fair shake and we'll win in the Supreme Court."

Earlier Friday, liberal lawyers and the president's critics cheered as the president, in unscripted remarks during the Rose Garden event, said that he "didn't need" to declare a national emergency to build the wall, but was doing so because he wanted to get it done "faster," a statement that could come back to haunt him in court.

"Keep talking mr president," Omar Jadwat, director of the American Civil Liberties Union's Immigrants Rights Project, tweeted.

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