California and a coalition of left-leaning states are expected to file a legal challenge to President Donald Trump’s national emergency declaration as soon as Monday.
California Attorney General Xavier Becerra told ABC News Sunday that the state had prepared to pursue legal action in advance of the president’s announcement, and shared plans to file a lawsuit “imminently.”
Colorado, Connecticut, Minnesota, Nevada, New Jersey, New Mexico, New York, and Oregon are expected to join California’s challenge.
The administration has taken steps to improve their prospects in court. White House officials have indicated that the government will focus primarily on border barrier projects in Texas, in an apparent bid to keep the ensuing legal challenges within the jurisdiction of the 5th U.S. Circuit Court of Appeals — a Trump friendly bench — or the Washington D.C. federal courts, which are less forbidding for the president than the 9th U.S. Circuit Court of Appeals.
California may also struggle to prove that they can bring legal action at this time. Funding for the border wall project is drawn from four sources: a $1.4 billion congressional appropriation, $600 million from the Treasury Department’s forfeiture fund, $2.5 billion from Defense Department counter-narcotics activities, and $3.6 billion from military construction projects to finance construction of the wall. Of those sources, only the $3.6 billion is accessed via the emergency declaration.
White House guidance on the emergency declaration indicates that the government will spend that money sequentially: that is to say, the government will exhaust the appropriation, the forfeiture assets, and the redirected counter-narcotics funds before expending the emergency funds. As South Texas College of Law Professor Josh Blackman has noted, potential plaintiffs like California might not have standing to challenge the declaration until those emergency funds are in fact allocated.
As such, the administration could conceivably complete large stretches of wall before challenges to the project can be heard in court.
But Becerra dismissed such questions Sunday, expressing confidence that California’s lawsuit will proceed.
“We’re confident there are at least 8 billion ways that we can prove harm,” Becerra told ABC. He went on to speculate as to different ways the reallocation of Defense Department funds could harm the states, like cuts to drug interdiction efforts or disaster management.
The American Civil Liberties Union (ACLU) is also expected to file suit against the administration in the coming days. Like the California coalition, the ACLU does not believe the situation at the southern border rises to the level of a nation emergency.
Public Citizen, a Washington-based consumer group, filed the first lawsuit challenging the national emergency declaration on Friday night.
Trump has speculated that the Supreme Court will ultimately decide whether his declaration is lawful.
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