The 16 States Suing Trump on Border Emergency Will Likely Lose, Says Retired Judge

By Cynthia Cai
Cynthia Cai
Cynthia Cai
March 19, 2019 Updated: March 19, 2019

After 16 states filed a lawsuit against President Trump and his administration for calling a National State of Emergency, a retired California judge has spoken out.

The States of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, the Commonwealth of Virginia filed the lawsuit in a Northern California federal court on Feb. 18, 2019, in opposition of the president’s use of emergency powers to divert money from other departments to the U.S.-Mexico border wall.

Congress passed a spending bill that allocated $1.375 billion for construction of the wall. President Trump said he plans to apportion approximately $8 billion for the wall, which involves redirecting $3.6 billion in military construction funds and $2.5 billion from the Department of Defense’s counter-drug activities.

In attempt to take a closer look at the issue, The Epoch Times sat down with Steven Bailey, attorney and retired California Superior Court Judge, to discuss the current situation and lawsuit. Bailey was the Republican candidate for California Attorney General in the 2018 midterm election.

The lawsuit claims Trump demonstrated a “flagrant disregard of fundamental separation of powers principles engrained in the United States Constitution.”

Part of the argument also stems from Trump’s statements regarding the situation at the border and wall funding. “I didn’t need to do this [declaration of national emergency], but I’d rather do it much faster,” said Trump during a press conference.

The main focus of the lawsuit lies with the question of whether Trump is permitted to redirect funds from other departments.

In 1976, Congress authorized the President of the United States to have the power of declaring national emergencies through the “National Emergencies Act,” Bailey explained, so “there isn’t a separation of powers issue. The real argument is whether the president has the authority, under general law, to then appropriate and move money from accounts to do something that Congress thinks is different.”

The 16 states alleged in the lawsuit that redirecting the funds would cause “significant harm” to public safety, financial well-being, and natural resources of the plaintiff states and their residents.

“The issue is now narrowed down to does he have the power to move military construction funds, which aren’t typically used for border walls and that type of thing. Can he spend that money? And that’s what the court needs to and will look at,” Bailey said.

He noted that the military construction funds mentioned in the lawsuit have not been allocated for any specific project, so the argument is based on speculation of whether redirecting funds would impact “not yet contracted” state military projects.

“One, I think they’d probably lose because they can’t really point to any specific project that’s being abandoned by the president after he committed to it. And secondly, the whole issue of reallocation of unspent, unallocated funds, it’s done every single day,” explained Bailey.

As such, Trump’s declaration of a national emergency at the U.S.-Mexico border is in accordance with the law, since a president is permitted to declare a state of emergency if it seems necessary.

According to Article 4, Section 4 of the Constitution of the United States, the president is obligated to protect the country from invasion.

Trump emphasized throughout his campaign and presidential term that securing our southern border is one of his top priorities. This means controlling the influx of illegal materials and people entering the United States through the U.S.-Mexico border.

According to yearly reports by U.S Customs and Border Protection (CBP), the number of individuals apprehended along the U.S.-Mexico border has increased over the years. By the end of 2018 fiscal year, the number of apprehensions reached 107,490, which is a 56.5% increase from the 68,684 apprehensions during 2014 fiscal year.

Additionally, the 2018 CBP report shows that officers seize daily, on average, 4,657 pounds of narcotics, $290,411 in undeclared or illicit currency, 16 fraudulent documents, 75 arrests of wanted criminals, among other items, along the U.S.-Mexico border.

“If you have no border, you have no country. Every sovereign nation in the world has a defined border. In our case, I don’t think there’s any question. Nobody in Mexico or the United States are arguing that there isn’t a border line. If you continue to allow people into the country, how do you argue that it isn’t an invasion of some sort?” said Bailey.

He elaborated that throughout human history, large groups of people invaded other territories with or without uniforms and weapons. The act of crossing territory borders by force is considered invasion.

It’s also notable that of the 16 states filing the lawsuit, all but Maryland have Democratic governors. Lawsuits against a president is commonplace. Under the Obama administration, President Obama was sued 46 times by Republican state attorney generals.

At present, the lawsuit has yet to progress in the court, because the standard process of overturning an executive order requires Congressional vote and action. At the time of the lawsuit filing, Congress had yet to act.

On March 15, Trump vetoed Congress’s resolution aimed at terminating his national emergency declaration over the crisis on the southwest border. To override the president’s veto, Congress would need a two-thirds majority vote.

Cynthia Cai
Cynthia Cai