(Reuters) - Democratic lawmakers, states and others mulling legal challenges to President Donald Trump’s national emergency declaration to obtain funds to build a U.S.-Mexico border wall face an uphill and probably losing battle in a showdown likely to be decided by the conservative-majority Supreme Court, legal experts said.
After being rebuffed by the U.S. Congress in his request for $5.7 billion to help build the wall that was a signature 2016 campaign promise, Trump on Friday invoked emergency powers given to the president under a 1976 law. The move, according to the White House, enables Trump to bypass lawmakers and redirect money already appropriated by Congress for other purposes and use it for wall construction.
Peter Shane, a professor at Ohio State University’s Moritz College of Law, said challenges to the emergency declaration could end up as a replay of the legal battle against Trump’s travel ban targeting people from several Muslim-majority nations. The Supreme Court last year upheld the travel ban after lower courts had ruled against Trump, with the justices giving the president deference on immigration and national security issues.
Trump has painted illegal immigration and drug trafficking across the border as a national security threat.
“Courts are reluctant to second-guess the president on matters of national security,” Shane said.
Democrats, state attorneys general and at least one advocacy group have vowed to take the Republican president to court over the declaration.
The Supreme Court has a 5-4 conservative majority that includes two justices appointed by Trump, Brett Kavanaugh and Neil Gorsuch. Chief Justice John Roberts has emerged as the court’s swing vote, and the decision on the legality of Trump’s action could come down to him.
“The handwriting is on the wall here,” said Steven Schwinn, a professor at the John Marshall Law School in Chicago. “The Supreme Court is almost certain to uphold President Trump’s emergency.”
Legal experts said the 1976 law gives presidents vast discretion. Trump plans to redirect $6.7 billion in federal funds to pay for a wall, money that would come from a U.S. treasury forfeiture fund, a defense counter-drug program and the military construction budget.
“The odds favor the president by a significant majority,” George Washington University Law School professor Jonathan Turley said. “He has the authority to make the declaration and he has the money.”
But the administration’s defense of Trump’s action may not be a smooth ride. Lawsuits could delay the use of funds the president is planning to tap, and legal experts said the bulk of funds may be tied up for years.
Trump is running for re-election next year and a loss would mean his presidency ends in January 2021. It is possible the legal fight over the emergency declaration might not be resolved by then.