BREAKING: Motion for Summary Judgment Filed in Lawsuit against President’s National Emergency Declaration

On April 26, 2019, Protect Democracy and the other co-counsel for Plaintiffs filed a motion for summary judgment in El Paso County & Border Network for Human Rights v. President Trump et al. The Plaintiffs are asking the Court to issue an injunction to block the unlawful emergency declaration, which has already resulted in concrete harm and threatens additional imminent harm if allowed to remain in place.

Statement of Kristy Parker, Counsel for Protect Democracy and co-counsel for Plaintiffs: “The President of the United States has limited Constitutional powers and is not a king. Declaring a national emergency under false pretenses to override Congress’s refusal to build a border is an authoritarian power grab.  Members of the border community are already suffering because of the President’s unconstitutional action. We feel confident the Court will act swiftly to check the President’s abuse of power.”

Statement of David Bookbinder, Chief Counsel for the Niskanen Center and co-counsel for Plaintiffs: “American democracy relies upon the separation of powers. When the President tries to usurp the role of Congress and undermine our system of checks and balances, as he did when he issued this emergency declaration, it puts everyone’s liberty at risk. We believe the Court will vindicate the principle that the powers of the President are limited.”

Statement of Laurence Tribe, Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School, and co-counsel for Plaintiffs: “The Plaintiffs have provided more than enough evidence to warrant a favorable judgment. The President engaged in multiple statutory and constitutional violations in order to declare a contrived national emergency. Now 800,000 members of the border community and thousands of U.S. military troops are burdened with an “emergency” that even the President has admitted wasn’t necessary. I trust the Court will uphold its duty to restrict the President’s powers to their constitutional limits.”

Statement of Stuart Gerson, Former Assistant Attorney General to President George H.W. Bush and Acting Attorney General of the United States, and co-counsel for Plaintiffs: “Our Constitution makes it clear that Congress has the power of the purse. Congress did not give that power away when it passed a statute permitting the President to act in true emergencies. The President has admitted that there is no ‘emergency’ now other than his desire to substitute his political preference for that of Congress, and we are confident that the Court will act to prevent him from exceeding the bounds of both clear statutory limitations and the Constitution.”


In early January, the President threatened to declare a national emergency if Congress did not allocate funding for a U.S.-Mexico border wall. In February, he carried out this threat, usurping the constitutional authority granted to Congress to pass laws and appropriate government funds even though he admitted he “didn’t need to do [it].” This action is inconsistent with the U.S. Constitution’s separation of powers, the various statutes the President invoked, and the President’s own oath to “take care that the laws be faithfully executed.”

Following the President’s emergency declaration, Protect Democracy, along with a bipartisan legal team, filed a lawsuit seeking an injunction to block the proclamation from taking effect. The amended complaint explains how the President’s actions violate numerous provisions of the Constitution and federal law, and have immediately inflicted injuries on the plaintiffs—El Paso County, Texas, and the Border Network for Human Rights. The case is being litigated  in conjunction with co-counsel Stuart Gerson, Laurence Tribe, the Niskanen Center, Willkie Farr & Gallagher LLP, and O’Melveny & Myers.

The President’s declaration of an “emergency,” and the proclamation’s threat to militarize the Southern border to construct miles of unauthorized walls and barriers, cause immediate injury to the plaintiffs, who must deal with the economic threat caused by the promise of massive construction. Worse yet, in the lead up to signing the emergency proclamation, the President repeatedly slandered and demonized border and Latino immigrant communities as sources of crime, drugs, and violence. This has inflicted harm not only on the plaintiffs in this case, but on immigrant communities and communities of color throughout the United States.

Moreover, the President’s declaration undermines national security and hurts military readiness for actual threats to the United States. The commandant of the Marines has warned the Pentagon that deployments to the southwest border and funding transfers needed for the president’s emergency declaration pose an “unacceptable risk to Marine Corps combat readiness and solvency.”

In order to enact this national “emergency,” the President usurped the constitutional authority granted to Congress to pass laws and appropriate government funds, all while admitting that he “didn’t need to do [it].” This is inconsistent with the separation of powers mandated by the Constitution, the statutes the President has invoked, and his own oath to “take care that the laws be faithfully executed,” and it poses a profound danger to the American people and our system of constitutional democracy.

As Protect Democracy advisers and authors of “How Democracies Die,” Daniel Ziblatt and Steven Levitsky, warned recently in The New York Times, “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.”

For more information about the case, visit