Welcome back to Trump Watch. The president's decision to declared a national emergency Friday in order to construct a wall on the U.S.-Mexico border is lighting up social media. We're taking a look at one interesting angle to keep an eye on in the looming litigation fight over Trump's wall.

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U.S. President Donald Trump speaks in the Rose Garden at the White House in Washington, D.C., on Friday, Feb. 15, 2019. Photo: Al Drago/Bloomberg

 

A National Emergency

President Donald Trump's declaration of a national emergency, a move designed to build a wall along the U.S.-Mexico border and sign a budget deal that would head off a second government shutdown, sparked an immediate outcry and raised the potential for a firestorm of lawsuits.

Trump will dedicate about $8 billion for construction of a border wall. Much of that money would come from diverting funds appropriated for other purposes, including the Defense Department's military construction projects, to finally deliver on Trump's campaign promise of a wall.

Groups have already vowed litigation, including Protect Democracy and the Niskanen Center, which said Thursday they have prepared a lawsuit on behalf of El Paso County, and the Border Network for Human Rights. California Attorney General Xavier Becerra, a frequent legal foe of the Trump administration, tweetedThursday that if the president declared an emergency, “we won't only call his bluff, we will do what we must to hold him accountable. No one is above the law.”

California Gov. Gavin Newsom similarly promised legal action Friday, arguing Trump's plan would divert funds used by the state's law enforcement in counter-narcotics operations. “California will see you in court,” he said.

But the move could also tee up a court fight with the Democratic-controlled U.S. House of Representatives. Almost immediately after news of a declaration surfaced, Speaker Nancy Pelosi decried the move at a press conference, and did not rule out the idea of suing the president: “Did I ever say I was filing a legal challenge? I may. That's an option and we will review our options.”

Congress might not even have to go that route. Lawmakers could first move to terminate Trump's national emergency declaration under the National Emergencies Act of 1976—the same federal law that Trump argues gives him the power to declare an emergency. Both the House and Senate would have to vote to rescind the declaration, and overcome any possible presidential veto.

If that gambit doesn't work, Democratic lawmakers have also teased legal action, with some representatives suggesting in January they would take Trump to court for what they believe to be an end run of the Constitution. If so, lawyers would be wise to pay attention to one prominent example where the House sued a president for spending money without congressional approval: the 2014 case House of Representatives v. Azar, previously known as House v. Burwell.

The case, you might recall, was brought by the then-Republican controlled House against the Obama administration for spending money to fund cost-sharing reductions in the Affordable Care Act. In 2015, U.S. District Judge Rosemary Collyer in D.C. held the House had suffered an institutional injury and therefore had standing to sue the executive branch. The case went to the U.S. Court of Appeals for the D.C. Circuit, where the parties reached a settlement in Dec. 2017.

>> I chatted on Thursday with David Rivkin, a BakerHostetler partner who—along with Florida International University law professor Elizabeth Price Foley—represented the House in the early stages of its lawsuit. Rivkin observed that on the merits, a challenge to a national emergency declaration and the 2014 lawsuit would be completely different — but, he said, from a standing perspective, “the situations are very, very similar, and almost identical.”

Rivkin said he could envision the House arguing that what the president is doing “vitiates their core constitutional power, the power of the purse, and it's an institutional injury.”

“From a standing perspective, it would be a perfectly plausible and viable lawsuit,” he said, before adding with a laugh: “As to whether the House would do that, I'm not close to Nancy Pelosi.”

 

Joseph Bianco, left, and Michael Park, right, testify before the Senate Judiciary Committee during their confirmation hearing to be U.S. circuit judges for the Second Circuit, on Wednesday, Feb. 13, 2019. Photo: Diego M. Radzinschi/ALM

 

Trump Docket

>> Speaking of the House, a judge on the U.S. Court of Appeals for the Fifth Circuit granted the House's motion to intervene in the appeal of the Affordable Care Act lawsuit in Texas. The conservative state attorneys general leading the legal challenge against the federal health law opposed lawmakers' motion to intervene, as did the Justice Department.

>> Two of Trump's Second Circuit nominees had a confirmation hearing this week. The Senate Judiciary Committee heard from Michael Park, a Consovoy McCarthy Park name partner, and Joseph Bianco, a federal trial judge in the Eastern District of New York since 2006.

>> A three-judge panel for the Ninth Circuit sided with the administration Monday in a ruling greenlighting construction of a prototype wall and repairs to existing barriers along the California-Mexico border, my colleague Nate Robson reported this week.

>> “Federal prosecutors are no longer required to argue in support of a reduced prison sentence for Paul Manafort, a federal judge ruled Wednesday, finding the special counsel had adequately demonstrated that the former Trump campaign chairman lied to authorities after pledging to cooperate.” My colleague C. Ryan Barber has the details here.

 

Speed Reads

>> “Cliff Sims worked for the White House. Now Trump wants to silence him.” [Washington Post]

>> “An Atlanta-based federal appeals court, acting in the case of a 75-year-old Georgia lynching, has reaffirmed the rights of federal judges to release grand jury records that are typically kept secret. The unanimous decision on Monday from an 11th Circuit panel came in one of a pair of cases that legal experts are closely watching for a potential impact on the Justice Department's latitude to make public the results of special counsel Robert Mueller's investigation into alleged ties between the Trump campaign and Russia.” [Politico]