President Donald J. Trump made good on his promise Friday to declare an national emergency on the southern U.S. border.
And thus begins a huge fight about presidential power, the border, and the Constitution.
The president said the action will be challenged by the courts that will go to the U.S. 9th Circuit Court of Appeals. “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," Trump said. He said the issue will end up at the Supreme Court where the administration will get “a fair shake and we'll win in the Supreme Court, just like the (travel) ban.”
He said this emergency order survive a court challenge, “possibly the easiest one to win" because there is a “virtual invasion” along the U.S.-Mexico border.
“Happily we'll win,” he said.
The president said the action was necessary to build the wall “faster.” The administration will reprogram more than $6 billion from the Department of Defense and Treasury. The White House said the military projects could be “repaid” the following fiscal year. But that requires an appropriation from Congress.
In addition to any litigation, the emergency power authority of the president can be challenged by the Congress. That would be a motion of disapproval that would start in the House and, if passed, the Senate would have to vote on that measure.
House Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer called the president’s action “a power grab.” The Democratic leaders said it “clearly violate the Congress’s exclusive power of the purse, which our Founders enshrined in the Constitution.”
The Brennan Center for Justice issued a statement that said the emergency declaration highlights the need for reform of presidential authority. “Currently, ending an emergency declaration requires Congress to muster a veto-proof supermajority. But there are alternative systems — for example, in many other democracies, the head of state declares a state of emergency, but the declaration is strictly time-limited, and only the legislature can renew it.”
Rep. Deb Haaland, D-New Mexico, Laguna Pueblo, called the president’s action “the next battle.”
“Make no mistake, this administration’s treatment of asylum seekers is abhorrent and goes against everything we hold dear in this country. During my trip to the border last weekend, I saw children separated from their parents whose lives will be forever changed by this trauma. Never did the border feel unsafe, and it is by no means a national emergency,” she said. “As we move forward, House Democrats will hold the administration accountable for any attempts to increase detention or inhumane treatment of immigrant families. I will fight against President Trump’s senseless emergency declaration and for a comprehensive approach to fix our broken immigration system that recognizes the humanity and dignity of the people seeking a better life in our country.”
Rep. Sharice Davids, D-Kansas, Ho Chunk, said the money being used “is intended for the military and to help us after natural disasters like tornadoes and flooding. It is dangerous to national security and it’s dangerous to our democracy."
On the other side of the question, Rep. Markwayne Mullin, R-Oklahoma, Cherokee Nation, said he supports the president. “We can no longer ignore the influx of deadly drugs, human trafficking, and criminal activity at the U.S.-Mexico border,” he said. “The president is our commander-in-chief. If he deems the crisis at our southern border an emergency, I am confident it is. I am proud to stand behind President Trump as he builds the wall to protect the law abiding citizens inside the United States.”
Earlier this month, Rep. Tom Cole, R-Oklahoma, Chickasaw, said on MSNBC that he agreed there is a national emergency at the border but warned of “an unwelcome precedent.”
“I think declaring emergencies where you’re going to immediately go to court — it’s going to be litigated for months where it’s not immediately obvious to everybody in America is a high-risk proposition.”
Tribes on the southern border have said the federal government should not act unilaterally to build a border on tribal lands. A resolution passed by the National Congress of American Indians says “border officials must act as partners in border security in a way that treats tribal governments and First Nations’ communities as equal, yet sovereign governmental partners.”
Much of the lands on the border is on tribal lands, including at least 62 miles on the Tohono O’odham Nation. Last year the tribe said a letter from the Border Patrol informed tribe members that “neither the FY17 nor FY18 budget has wall funding that would affect the nation.” It’s not clear if the emergency declaration changes that position.
A video from the Tohono O’odham Nation said; “Long before there was a border, tribal members traveled back and forth to visit family, participate in cultural and religious events, and many other practices. For these reasons and many others, the Nation has opposed fortified walls on the border for many years.”
(The National Congress of American Indians is the owner of Indian Country Today and manages its business operations. The Indian Country Today editorial team operates independently as a digital journalism enterprise.)
Mark Trahant is editor of Indian Country Today. He is a member of the Shoshone-Bannock Tribes. Follow him on Twitter - @TrahantReports