Ex-Lawmakers Say Border Wall Emergency Status Was 'Sham'

By Sarah Martinson
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Law360 (April 3, 2020, 10:13 PM EDT) -- Former members of Congress urged the Fifth Circuit on Friday to uphold a ruling blocking the Trump administration from diverting $3.6 billion to border wall construction, arguing that a real national emergency like the COVID-19 outbreak shows that the president's earlier emergency declaration was a "sham."

In support of El Paso County, Texas, a bipartisan group of more than 100 former lawmakers said that President Donald Trump abused his executive powers by declaring a national emergency at the U.S.-Mexico border in 2019 when there wasn't one in order to override Congress' authority to decide how taxpayer money is spent.

"The real emergency that now exists throughout the country reveals what a sham the purported claim was in 2019," the lawmakers said in an amicus brief.

Former government officials who have expertise in national and homeland security added in a separate amicus brief on Friday that there are no terrorist, drug or human trafficking activities happening at the southern border to support Trump's national emergency proclamation.

"Very real and disturbing humanitarian concerns at the border have resulted from the current administration's own deliberate policies towards migrants," they said.

El Paso County and the Border Network for Human Rights sued the federal government in February, less than a week after Trump declared a national emergency to free up defense funding for border wall construction. They argued that the Constitution gives Congress the power to decide how the government spends money and that the president's declaration laid claim to money lawmakers had not appropriated.

U.S. District Judge David Briones agreed with the county and the nonprofit and issued a nationwide injunction in December stopping the Trump administration from using $3.6 billion in defense funding for border wall construction. Judge Briones ruled that the administration overstepped its authority when it tried to augment Congress' allocation for the wall.

The Trump administration appealed Judge Briones' order to the circuit court in December, arguing that past presidents from both parties have declared national emergencies to address a variety of problems and that Trump's declaration can't be subjected to judicial review.

The Fifth Circuit in January paused enforcement of the federal judge's funding block while the order was being challenged in the circuit court, allowing Trump to tap into defense funding for border wall construction.

Epstein Becker Green attorney Stuart Gerson, who is representing El Paso County and the Border Network for Human Rights, told Law360 that they are "making a fundamentally conservative point."

"We are on the left-of-center and on the right-of-center, where I am, are advocating for the structural constitution and the checks and balances that the framers intended," Gerson said.

Counsel for the government and counsel for the amici did not respond to requests for comment.

The former members of Congress are represented by Irvin B. Nathan, Robert N. Weiner, Andrew T. Tutt, Kaitlin Konkel and Samuel F. Callahan of Arnold & Porter.

The former government officials are represented by Harold Hongju Koh of Peter Gruber Rule Of Law Clinic Yale Law School, Phil Spector of Messing & Spector LLP and John W. Griffin Jr. and Robert E. Mcknight Jr. of Marek Griffin & Knaupp.

El Paso County and the Border Network for Human Rights are represented by Ephraim A. McDowell and Anton Metlitsky of O'Melveny & Myers LLP, Kristy L. Parker, Deana K. El-Mallawany, Justin Florence, Cameron Kistler and Jessica Marsden of the Protect Democracy Project, Stuart M. Gerson of Epstein Becker Green, Shaimaa Hussein and Richard Mancino of Willkie Farr & Gallagher LLP and John Charles Padalino of the Law Office of John Padalino.

The government is represented by H. Thomas Byron III and Courtney L. Dixon of the U.S. Department of Justice's Civil Division.

The case is El Paso County, Texas et al. v. Donald Trump et al., case number 19-51144, in the U.S. Court of Appeals for the Fifth Circuit.

--Editing by Nicole Bleier.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

El Paso Cty v. Trump

Case Number



Appellate - 5th Circuit

Nature of Suit

2890 Other Statutory Actions

Date Filed

December 16, 2019

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