Ensuring Congressional Authorization of Emergency Powers


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.”

Statements from Experts

Donald Ayer (Former Deputy Attorney General to President George H.W. Bush): “The President’s emergency declaration is an obvious end run around Congress’s repeated refusal to appropriate funds for a border wall. Without any emergency, it is a gross abuse of our system of representative government. This lawsuit and action by Congress under the National Emergency Act are critical steps now to stop an insistent bully from running roughshod over our democratic system.”

Stuart M. Gerson (former Assistant United States Attorney, Assistant Attorney General and Acting Attorney General of the United States): “The current administration has expressed confidence in victory, much like that of President Truman did before the Supreme Court ruled against him in the analogous circumstances presented in Youngstown Sheet & Tube Co. v. Sawyer, the famous steel seizure case. Notwithstanding less-than-perfect legislative drafting by the current Congress with respect to emergency powers, I believe that any reasonable notion of the constitutionally fundamental separation of powers must be held to carry with it a necessary limitation on the power of the Executive. I make this point as one, who at the time preceding the Gulf War build-up and the conflict itself, was the President’s representative in court and before the public, arguing correctly that his war powers authority was, subject to congressional power over the purse, virtually unlimited.  A state of emergency however, is something that should describe an objectively demonstrable exigency that time doesn’t allow for inter-branch resolution, not merely a bothersome situation that not only has persisted for years but is diminishing, and which actually has been the subject of congressional action. Given congressional resolution of the budget impasse that included its intended financial allocation for border physical security, one suggests that the current case is one in which the President is defying Congress, the type of case that Justice Jackson, concurring inYoungstown, usefully put in the category of justiciable disputes in which the power of the Executive can be restrained. And, turning to the substance of what the President is attempting with respect to redirecting a significant portion of the defense budget, it would appear that doing so needlessly in the name of national defense ironically would, in fact, weaken the national defense.”

Laurence H. Tribe (Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School): “The injunction requested by the county of El Paso and the Border Network for Human Rights is amply justified by the detailed and well documented complaint filed today. The U.S. District Court for D.C. should act swiftly to restrain President Trump and his administration from usurping Congress’s powers and abusing the U.S. Military in ways that would manifestly subvert the Constitution and inflict grievous harm on the 800,000 residents of a successful community that the President has shamelessly used as a poster child for his political posturing. As the complaint convincingly explains, the statutory and constitutional violations that the president proposes to launch – despite his own remarkable admission that he did not need to do so – will inflict irreparable harm unless stopped immediately – before they can cause still more damage to a proud and thriving group of people.”

David French (Attorney and Senior Fellow, the National Review Institute): “The stakes are particularly high if the President defies Congress and invokes ‘national security’ to get his border wall. It would be a blatant abuse of power. As it becomes more and more clear that the President will not police his own power, our democracy depends on the courts fulfilling their constitutional role.”

Ilya Somin (Professor of Law, George Mason University): “The President’s attempt to use emergency powers to build his border wall is illegal, and a threat to both separation of powers and the property rights of large numbers of Americans. If he succeeds, it would set a dangerous precedent. Future presidents, too, could use dubious supposed ‘emergencies’ to raid the treasury and seize private property.”

Linda Chavez (Chairman, Center for Equal Opportunity, Columnist, and Former White House Director of Public Liaison to President Ronald Reagan): “President Trump’s decision to declare a national emergency in order to build an unnecessary wall at our southern border is a naked display of his contempt for the separation of powers. He flouts the Constitution on a whim and rejects the normal political process when he doesn’t get his way.”

Steven Levitsky (Professor of Government, Harvard University, Co-Author of How Democracies Die): “It is essential in a democracy that politicians know how to lose. President Bill Clinton devoted the first two years of his administration to a universal health insurance bill only to see it die in Congress. President George W. Bush claimed a mandate to reform Social Security after his 2004 re-election, but the initiative went nowhere. All presidents suffer such defeats. All presidents must, therefore, be able to lose. With his declaration of a “national emergency,” President Trump has demonstrated once again that he is unwilling to lose—a trait one normally sees in autocrats. Trump’s fabrication of an emergency is similarly taken from the autocrat’s playbook. And the explicit willingness to bypass Congress cuts at the heart of our constitutional system  This is Trump’s most autocratic act to date. Republicans must act to stop it. Our democratic institutions are at stake.”

Kim Lane Scheppele (Laurance S. Rockefeller Professor of Sociology and International Affairs, Woodrow Wilson School, Princeton University): “The Constitution gives the power of appropriation to the Congress and the President therefore cannot just raid the budget to pay for projects that the Congress has refused to approve.   The courts need to set limits to the extraordinary emergency powers any president can invoke when the Congress has told him ‘no.’”

Evan Wolfson (Founder, Freedom to Marry): “Americans elect a president, not a king. Trump’s attempt to rule by decree in defiance of the Constitution is the actual national emergency, and if Congress won’t stop it, the courts must.”

Ruth Ben-Ghiat (Professor of Italian and History, New York University): “President Trump’s declaration of a national emergency is a perfect example of his authoritarian tendencies. It is fruit of manipulated opinion about the supposed security threat at the border and an intention to get what he wants (the wall) at any cost.”

Mindy Finn (Co-CEO and Founder, Stand Up Republic): “Separation of powers with three co-equal branches of government was a brilliant, foundational, governance decision for our nation. No matter ones partisan proclivities, the erosion of that balance in favor of unbridled executive power should alarm them.”

Yascha Mounk (Author of The People vs Democracy: Why Our Freedom Is In Danger and How To Save It, Senior Adviser to Protect Democracy)“The President’s declaration of a state of national emergency is the most serious violation of the separation of powers he has so far committed, and it is hard to imagine a clearer piece of evidence that he is seeking unconstitutional powers. If Trump’s past attacks on the legislature and the judiciary have, at times, felt like a drill, his intention to arrogate vast powers to himself under an utterly transparent pretext is the real deal.”

John McKay (Former U.S. Attorney who has taught Constitutional Law at Seattle University and Chairs Government Investigations for Davis Wright Tremaine): “President Trump’s claim that he will declare a national emergency and unilaterally reprogram federal funding to his border wall with Mexico would clearly exceed his constitutional authority.  Not since Truman’s ill-advised seizure of the steel industry have we seen such a naked abuse of Executive Branch authority. Congress and ultimately the courts must stand firm against despotic behavior and this nearly unprecedented contempt for the rule of law.”

Michael Miller (Associate Professor of Political Science, The George Washington University)“President Trump’s action is an abuse of power that does grave damage to the rule of law and the health of our democracy. An executive’s unilateral declaration of “emergency powers” after failing to pass legislation has preceded democratic breakdowns in Peru, Argentina, India, Thailand, and elsewhere. For the United States, it presents a further sign of democratic decline engineered by a lawless president.”

Voices of Those Affected

El Paso County, Texas, is a bilingual, bi-national, multicultural community with over 800,000 residents, more than 82% of whom are Latinx and more than 25% of whom are foreign born. It is part of the largest border community on the Rio Grande, and has been recognized as one of the ten safest cities in the U.S. for two consecutive years based on its low rates of violent crime and property crime. El Paso County takes great pride in protecting its residents and values, and has been a leader in the fight against discrimination of all types with a special focus on protecting the civil rights of its immigrant communities.
President Trump’s official attack on this American city has threatened local businesses, harmed tourism, and denigrated the reputation of a community that local residents have historically known to be safe and thriving. For more information about how his illegal and unconstitutional emergency declaration has affected real people in this community, visit


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