El Paso County v. Trump

  • February 20, 2019

Together with a cross-partisan litigation team including Republican Stuart Gerson and Democrat Larry Tribe, the center-right Niskanen Center, and the law firms of Wilkie Farr & Gallagher and O’Melveny & Myers, Protect Democracy represented El Paso County, Texas, and the Border Network for Human Rights in a lawsuit alleging that Trump’s declaration violated multiple federal statutes, including the National Emergencies Act and the Consolidated Appropriations Act.  The lawsuit was filed in the Western District of Texas and the district court enjoined the declaration, holding that the plaintiffs were injured by Trump’s declaration and had standing to sue. That ruling was overturned by the Fifth Circuit Court of Appeals in a 2-1 decision. Companion lawsuits filed in other jurisdictions were ultimately held moot by the Supreme Court following changes in policy executed by the Biden administration.  Protect Democracy continues to advocate for reforming the National Emergencies Act to prevent anti-democratic end runs around Congress.

President Trump campaigned on a promise to build a wall across the southern border and sought funding from Congress to do so. When Congress refused to give him the funds, he invoked the National Emergencies Act to declare that the influx of immigrants at the southern border (a longstanding challenge) was an “emergency” and diverted various military funds appropriated for other purposes to wall construction. He did so in spite of the fact that a bipartisan majority of the Senate voted to disapprove the declaration.

The Constitution establishes a system of checks and balances to prevent the exercise of runaway executive power. Over time, presidents of both parties have used emergency powers to circumvent Congress’s spending power. This is a dangerous trend, as would-be autocrats often abuse so-called “emergencies” as a basis for consolidating their power and ignoring the will of voters.

Case Documents
Statements from Experts on the Emergency Declaration

Statements from Experts on the Emergency Declaration

Experts across the ideological spectrum and from an array of professional backgrounds have criticized the president’s emergency declaration. Read their concerns here.

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Current United States Authoritarian Threat Index score: 2.1/5 Significant Threat

The Score Breakdown

  • Executive Constraints 1.8/5 • Low Threat