How Trump’s Off-The-Rails Presser Will Play In The Court Fight Over His Border Move

WASHINGTON, DC - FEBRUARY 15: U.S. President Donald Trump speaks on border security during a Rose Garden event at the White House February 15, 2019 in Washington, DC. President Trump is expected to declare a nationa... WASHINGTON, DC - FEBRUARY 15: U.S. President Donald Trump speaks on border security during a Rose Garden event at the White House February 15, 2019 in Washington, DC. President Trump is expected to declare a national emergency to free up federal funding to build a wall along the southern border. (Photo by Chip Somodevilla/Getty Images) MORE LESS
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President Trump yet again made life more difficult for the attorneys who defend his policies, by speaking candidly about why he was taking the extraordinary step of issuing an emergency declaration to fund the building of his border wall.

Over the course of a nearly hour-long, meandering press conference Friday in the Rose Garden, Trump made a number of comments about his decision that caught the attention of — and outright excited — the lawyers who might be involved in the legal challenges expected to be mounted against the move.

Take, for instance, the instant reaction of the director of the ACLU’s Immigrants’ Rights Project, Omar Jadwat:

From a P.R. perspective, Trump didn’t do himself any favors in suggesting that he was making the declaration because he was dissatisfied with the deal Congress offered him. That undermines the idea that this move was driven by some real emergency occurring on the southern border.

How the litigation over the declaration will play out is a little more nuanced, legal experts tell TPM. Given courts’ unwillingness to second guess the executive branch on what constitutes an emergency, the coming lawsuits are likely to focus on the language in the specific statute the White House is using to access the barrier funding. That statute (10 U.S. Code 2808) authorizes spending during national emergencies on “military construction projects” that are “necessary to support” the use of armed forces.

Nonetheless, Trump’s comments Monday will still be helpful to those challenging the move, providing evidence of the atmospherics around his decision and in support of the argument his declaration is just an end-run around Congress.

Here a few quotes in particular that could show up in future court filings:

“I didn’t need to do this. But I’d rather do it much faster.”

Robert Chesney, a professor at University of Texas at Austin School of Law, pointed to this comment as one that would help challengers make the argument that Trump’s move is a “gimmick to overcome the appropriations powers in Congress.”

“Some plaintiff landowner, at some point, is going to quote that … among many other things to paint the picture of a president who doesn’t at all think it’s an emergency but rather thinks that this is a convenient shortcut to overcome his defeat in the appropriations process,” Chesney said.

“People that should have stepped up, did not step up.”

Trump referenced his disappointment in “certain people” — and a “particular” person — “for not having pushed this faster.” He declined to say whether he was talking about former Speaker Paul Ryan, who promised Trump last spring that Congress would fund the wall by the end of the year, but it’s not hard to read the line as a reference to Congress.

“People that should have stepped up, did not step up. They didn’t step up and they should have,” Trump said earlier in his remarks.

According to Julian Sanchez, an expert on civil liberties and national security at the libertarian Cato Institute, the comment might be helpful with two different lines of attack future litigants may pursue.

One is the 2808 argument, that this funding is not supportive of a military action. He’s admitting he “didn’t need to do it,” but is doing it because “certain people”—meaning Congress — haven’t “stepped up.”

Second is a constitutional separation of powers argument, Sanchez said in an email to TPM.

“I don’t think anything he said today radically alters the shape of the argument, but it does help sharpen the point that this isn’t something he’s doing because there’s no time for Congress to act: He’s doing it because Congress exercised the power of the purse and declined to give him as much money as he wanted for his preferred policy,” Sanchez said.

“We’ve done an incredible job of stopping them.”

Brendan Beery, a professor at Western Michigan University Thomas M. Cooley Law School, pointed to several aspects of Trump’s remarks that could be used to argue that a real national emergency was not in the front of his mind as he announced the new funding. One was his rambling remarks about the campaign promises he claimed he’s kept, which undercut the point Trump made that he was not taking this measure because it was a campaign promise, Beery said in an email to TPM.

Trump also said that “we have far more people trying to get into our country today than probably we’ve ever had before,” and that “we’ve done an incredible job in stopping them.”

“That cuts against an emergency,” Beery said, as does Trump’s line that a wall would make the job “very easy.”

Beery argued that a comment like that is different than saying “the wall is necessary as a response to an emergent threat.”

Trump’s claim that immigration is “probably” at its highest rate ever is also false.

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