El Paso County & Border Network for Human Rights v. President Trump, et al.

Protect Democracy is representing El Paso County, Texas, and the Border Network for Human Rights in a lawsuit against President Trump over his declaration of a national emergency to fund a U.S.-Mexico border wall. The lawsuit seeks an injunction to block the declaration from taking effect, and the amended complaint explains why the President’s declaration is not supported by the law, violates numerous provisions of the Constitution and U.S. Code, and has inflicted injuries on the plaintiffs.

The plaintiffs’ cross-partisan legal team includes former Acting Attorney General Stuart Gerson, a top aide to President George H.W. Bush; Harvard Law Professor Laurence Tribe, one of the nation’s leading constitutional law experts who represented Al Gore in Bush v. Gore; the Niskanen Center, a center-right policy think tank; and the law firm Willkie Farr & Gallagher LLP. The case was filed in the United States District Court for the Western District of Texas in El Paso.

In January 2019, the President threatened to declare a national emergency at the U.S. border with Mexico if Congress did not allocate funding for a border wall. The following month, after Congress denied his funding request, he carried out his threat, usurping the constitutional authority granted to Congress to pass laws and appropriate funds—all while admitting that he “didn’t need to do [it].” The President’s contrived “emergency” declaration is inconsistent with the U.S. Constitution’s separation of powers, the various statutes he invoked, and his oath to “take care that the laws be faithfully executed.”

Beyond being unlawful, the President’s emergency declaration caused immediate harm to the plaintiffs, who live and conduct business in the affected community. In the leadup to the declaration, the President and his administration repeatedly demonized border communities and Latino immigrants as sources of crime, drugs, and violence. This inaccurate characterization has inflicted harm not only on the plaintiffs in this case, but on immigrant communities and communities of color throughout the United States. The proclamation’s militarization of the Southern border to construct additional miles of unauthorized walls and barriers has caused additional injury to the plaintiffs, and has put servicemembers in the unenviable position of having their military funds redirected to border construction projects.

This emergency declaration also poses a profound danger to America’s system of constitutional governance. Daniel Ziblatt and Steven Levitsky, Protect Democracy advisers and Harvard professors who authored the book “How Democracies Die,” warned in The New York Times that “National emergencies can threaten the constitutional balance even under democratically minded presidents like Abraham Lincoln and Franklin Roosevelt. But they can be fatal under would-be autocrats . . . Crises present such great opportunities for concentrating power that would-be autocrats often manufacture them . . . . [T]hese developments should set off alarm bells. Our president is behaving like an autocrat.”

As Kristy Parker, Counsel for Protect Democracy, said upon the filing of this case: “Throughout history, autocrats have used so-called emergency powers to seize control from democratic systems that don’t yield to their will. Often, they have invented fake crises for this purpose, and we should all be extremely alarmed that President Trump has reached for this tool in the autocrat’s toolkit. Thankfully, our founders also knew that the seizing of legislative powers by the executive was, in the words of James Madison, ‘the very definition of tyranny’ and made it unlawful. It’s unlawful here, and we look forward to the courts upholding our framers’ vision.”

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