Today, Protect Democracy, the Niskanen Center, the Border Network for Human Rights, and El Paso County, Texas, filed a friend-of-the-court brief supporting the Sierra Club and Southern Border Communities Coalition (SBCC) in their lawsuit against President Trump’s abuse of emergency powers. The lawsuit asks a federal court to block the Trump administration’s attempt to transfer $3.8 billion, already appropriated by Congress for use by the armed forces, to fund the border wall. The Sierra Club and SBCC are represented by the American Civil Liberties Union, and their case is being heard by the Ninth Circuit Court of Appeals. Protect Democracy filed a similar lawsuit, which is currently pending before the Fifth Circuit Court of Appeals, in 2018. More information about Protect Democracy’s case is here.
“President Trump is raiding the Department of Defense and our military bases to build his wall in direct contravention of Congress,” said Kristy Parker, Counsel at Protect Democracy. “By declaring a fake ‘emergency’ and circumventing Congress’s power of the purse to build his border wall, he is acting like a king. The courts can and should act to defend our constitutional separation of powers.”
In the brief, Protect Democracy contends that the District Court for the Northern District of California correctly decided that 10 U.S.C. 2808, the statute invoked by President Trump’s emergency proclamation to transfer military construction funds, does not permit the transfer of Department of Defense money for the border wall. The wall is neither a “military construction project,” nor is it “necessary to support the armed forces,” as required by the statute. The brief explains that the diversion of funds is also illegal under the Consolidated Appropriations Act of 2019, in which Congress carefully considered how much money to spend on border security, and section 739 of the Act, which bars the executive branch from spending money for specific projects beyond the amounts appropriated by Congress.
Protect Democracy represents El Paso County and the Border Network for Human Rights in a parallel challenge to the legality of the administration’s scheme to usurp military funds to build the border wall. The legal team also includes 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 succeeded in obtaining an injunction blocking this spending in December after the District Court for the Western District of Texas ruled that President Trump’s emergency proclamation and use of reprogrammed Department of Defense funds to build border barriers were unlawful. The Fifth Circuit then paused the injunction while the administration appealed.
While the appeal has been pending, President Trump renewed his fake emergency and announced plans to transfer an additional $3.8 billion from the military to fund wall construction.
“President Trump’s plan to take billions of additional dollars in military funds for his border wall is one more authoritarian attack on our constitutional separation of powers,” said Parker. “If the courts do not rein him in, the congressional power of the purse will be a dead letter. So will the power of the people to protect their homes and their environment through their elected representatives. This is not the democracy our founders intended.”
For more information about Protect Democracy’s lawsuit, visit EndTheEmergency.org.
The friend-of-the-court brief can be found here.