El Paso County and the Border Network for Human Rights Urge Appeals Court to Uphold Decision Invalidating Trump’s National Emergency for Border Wall

NEW ORLEANS, LA — Today, El Paso County, Texas, and the Border Network for Human Rights filed a brief requesting that the US Fifth Circuit Court of Appeals uphold a lower court’s decision invalidating President Trump’s proclamation of a national emergency on the southern border. Last October, a federal district court in Texas struck down the Administration’s emergency proclamation, deeming it unlawful because it illegally sought to override Congress’s decision to not fund further border wall construction. The district court also blocked the Administration from using Department of Defense military construction funds to build the wall.

Kristy Parker, Counsel for Protect Democracy, a nonpartisan nonprofit which represents the plaintiffs-appellees, said: “The devastating coronavirus pandemic shows that there is a time and a place for the President to use emergency powers. But it also makes clear that the President’s proclamation of an emergency to build a wall on the southern border was a flagrant abuse of power. The people need to be able to trust our leaders to use emergency powers appropriately. We are confident the court of appeals will recognize its vital duty to check this executive power grab.”

Jerry Taylor, President of the Niskanen Center, which also represents the plaintiffs-appellees, said: “As this emergency declaration and others have made clear, Congress must reassert its rightful place as the center of lawmaking and act as a check on the Executive Branch. We hope the Court will act to defend the important divisions of power in our system of government, and that bipartisan efforts to reform the National Emergencies Act continue without delay.”

Stuart Gerson, former Acting U.S. Attorney General and co-counsel for the plaintiffs-appellees, said: “The Founders created a delicate system of constitutional checks and balances to protect us from tyranny. The president’s declaration of a national emergency along our southern border ran roughshod over that system, in an affront to our constitution and Congress’s power of the purse. We are hopeful that the Court will uphold the balance between our three branches of government and safeguard our liberty in these especially trying times.”

Laurence H. Tribe, Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School and co-counsel for the plaintiffs-appellees, said: “As the District Court for the Western District of Texas rightly recognized, the Administration’s actions here have irreparably harmed El Paso County and the Border Network of Human Rights. The erosion of democracy has real impacts on real people, and we hope that the courts continue to defend communities from illegitimate uses of executive emergency powers.”


The District Court for the Western District of Texas issued its nationwide injunction on December 10, 2019, after ruling on October 11, 2019, that the President’s emergency proclamation and use of certain reprogrammed Department of Defense funds to build border barriers were unlawful. Under the Consolidated Appropriations Act of 2019, Congress appropriated $1.375 billion for border barrier construction. Section 739 of the Act prohibits the administration from increasing that funding beyond what Congress expressly approved. The court determined that the administration’s attempts to use the national emergency proclamation to reprogram military construction funding under 10 U.S.C. 2808 was prohibited because it sought to override Congress’s decision not to fund further border wall construction.

On January 8, 2020, the Fifth Circuit Court of Appeals temporarily stayed the injunction pending the government’s appeal, citing the U.S. Supreme Court’s stay of a similar injunction in a separate but related  case ongoing in the Ninth Circuit Court of Appeals, Sierra Club v. Trump.

The legal team representing El Paso County and the Border Network for Human Rights includes Protect Democracy; the Niskanen Center, a center-right policy think tank; former Acting U.S. Attorney General Stuart Gerson, a top aide to President George H.W. Bush and founding member of the conservative nonprofit Checks and Balances; Harvard Law Professor Laurence Tribe, one of the nation’s leading constitutional law experts who represented Al Gore in Bush v. Gore; and the law firms Willkie Farr & Gallagher LLP and O’Melveny & Myers LLP.

Protect Democracy, the Niskanen Center, El Paso County, and the Border Network for Human Rights recently filed a friend-of-the-court brief in Sierra Club v. Trump, arguing that the district court in that case correctly ruled for the Sierra Club and the Southern Border Communities Coalition in blocking the administration’s diversion of military funds under 10 U.S.C. 2808.

While the appeal in El Paso County v. Trump has been pending, President Trump renewed his unlawful emergency proclamation and announced plans once again to override Congress by transferring an additional $3.8 billion from the military to fund wall construction.

For more information about the case, visit EndTheEmergency.org.

The plaintiffs-appellees’ response and other case documents can be found at https://protectdemocracy.org/project/el-paso-county-v-trump/#section-1.