President Donald Trump’s national emergency declaration to divert more than $6 billion to build a wall on the border with Mexico will face its first test in court on Friday, when states and advocacy groups are expected to ask a federal judge to block the funding.
At the center of Friday’s hearing is the question of the president’s authority to construct a wall using funds that Congress declined to approve for the amount he requested.
In February, Congress approved $1.375 billion for construction of “primary pedestrian fencing” along the border in southeast Texas, well short of Trump’s demand for $5.7 billion to build border walls in Arizona and New Mexico as well as Texas.
To obtain the additional money, Trump declared a national emergency and diverted $601 million from a Treasury forfeiture fund, $3.6 billion from military construction and $2.5 billion earmarked for Department of Defense counterdrug programs.
“Congress’s refusal to fund President Trump’s wall isn’t an emergency, it’s democracy,” said a statement from Dror Ladin, an attorney for the American Civil Liberties Union, which represents plaintiffs in the case.
The Trump administration argues the plaintiffs have not shown any injury caused by the funding decisions and that existing law gives it the leeway to redirect the money for such purposes as “an unforeseen military requirement” or a “law enforcement activity.”
Trump made a border wall the center of his 2016 campaign for president, when he said Mexico would pay for construction. That pledge went nowhere, and Trump also hit resistance in Congress even as apprehensions of migrants by border agents hit a decade high as of April.
The plaintiffs in Friday’s hearing include 20 states, the Sierra Club environmental group and the Southern Border Communities Coalition, which advocates for immigrants. They argued in court papers that the administration has violated the separation of power principle of the U.S. Constitution, among other claims.
The plaintiffs also said wall construction would harm the environment and the wildlife habitats for such creatures as Gila monsters and the Mexican wolf.
The diversion of Treasury forfeiture funds would undermine state law enforcement, they argued. New York state, for example, has used forfeiture funds to buy bullet-proof vests and naloxone, a drug that counters opioid overdoses.
Although it is not a plaintiff, the Democratic-controlled House of Representatives plans to argue in support of the plaintiffs at the hearing. The House called the diversion of funds a “flagrant disregard for the bedrock principle” that Congress controls federal spending.
The hearing comes the same week that Trump has outlined proposals to beef up security along the southwest border and shift immigration policy to favor well-educated English speakers over a system that emphasizes uniting families.
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