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Is Trump’s National Emergency Declaration Legal

Trump speaking in Manchester, New Hampshire

President Donald Trump just declared a national emergency in order to bypass Congress and fund his wall on the southern border.

Trump suggested for several weeks that this was an option, but it was not clear if he would actually do it. It sets a  precedent and will likely be challenged in the courts.

The president was not able to make a deal with Democrats that would give him the money he wanted to build the wall.

Now there are at least two legal questions: Does Trump have the constitutional authority to do this? And will it survive the Legal challenge?

Trump at King Khalid International Airport

As Trump Declares a National Emergency To Fund The Border Wall, Democrats Vow to Fight

President Trump obviously expects a court battle and is counting on the Supreme Court to help.

“We will possibly get a bad ruling, and then we’ll get another bad ruling, and then we’ll end up in the Supreme Court, and hopefully we’ll get a fair shake.”

Jonathan Turley MSNBC August 2017

Presidents have declared national emergencies 60 times since 1976 and every U.S. president since then has declared at least one national emergency. Trump does have broad power under the law, but not unlimited.

At this time, it is unclear where the legal battle lines will be. If this makes it to the Supreme Court,  Democrats could  likely lose on the merits because Congress has already bestowed this power on the president.

“So there’s two issues here for the court. The authority, the source of the authority to declare the emergency and the source of the funds. On the source of authority, they will lose in a spectacular fashion because they gave this authority to the president [in 1976],” Law professor Jonathan Turley

Patrick M. Shanahan official portrait

Public Citizen, a Washington-based consumer group, has already filed the first lawsuit challenging President Donald Trump’s national emergency declaration.

Their complaint says the president’s declaration violates separation of powers principles because there is no emergency at the southern border justifying the invocation of extraordinary powers.

The Public Citizen lawsuit seeks an injunction barring acting Defense Secretary Patrick Shanahan from redirecting DOD resources to comply with the Friday directives.

Border Wall at Tijuana and San Diego Border

It’s not clear if they can sue at this juncture, however it may be weeks or even months before DOD funds are reallocated for the border barrier project.

The government has not yet replied to the lawsuit, the first of many upcoming legal challenges.

Whether you are for or against the wall, it does not look like it will happen before the next Presidential election.