WASHINGTON — As the spending bill deadline set in and another partial government shutdown loomed like a dark cloud over Washington, President Donald Trump finalized plans to declare a national emergency.
The declaration was not a surprise, the lawsuits weren't either.
"So I think what will happen is sadly we'll be sued and sadly, it'll go through a process, and happily we'll win," Trump said during a news conference.
Within 48-hours, 16 states filed a lawsuit in the U.S. District Court for the Northern District of California.
“President Trump is manufacturing a crisis and declaring a made-up 'national emergency' in order to seize power and undermine the Constitution,” California Governor Gavin Newsom said in a press release. “... Our message to the White House is clear: California will not be part of this political theater. We will see you in court.”
A few days later, on Feb. 21, the president tweeted about the border wall's progress.
That same day, House Speaker Nancy Pelosi wrote a letter urging members of Congress to back a joint resolution to block Trump's national emergency declaration.
So with pressure mounting in from Congress and pending lawsuits, can the president begin allocating funds (or even start building) the wall?
Our Verify researchers asked three constitutional law professors whether Trump could get the ball rolling.
"For the moment, yes, however, there's a good chance that in one of more of the lawsuits, a court will issue an injunction against the things that he's doing," Ilya Somin of George Mason University said. "If an injunction is issued it would at least constrain a lot of his efforts to build the wall."
David Golove, a professor at NYU Law School, concurred that an injunction or restraining order would be the only way in court to temporarily halt preparations to build the wall.
"The filing of a lawsuit or lawsuits doesn’t immediately affect President Trump’s powers in any way," Golove said. "It may be difficult to show a pressing enough reason for the courts to act especially quickly. In any case, whether the President can or cannot move forward with the wall while the cases are pending will depend on whether the courts decide to grant preliminary relief of this kind. And the various courts involved may resolve the issue differently, which would add additional complications."
It's not difficult for the plaintiffs, led by California's attorney general, to seek an injunction, but it could take a long time for the courts to grant one. That's because the plaintiff has to prove that without a temporary injunction, the defendant could cause irreparable harm.
"It's hard to show irreparable injury because at the beginning we don't know who's right and wrong, and so the court doesn't like to stop someone if he has a right to be doing it," Susan Bloch, a Constitutional Law Professor at Georgetown University said.
Less than a year ago, the president was challenged over each version of his travel ban with preliminary injunctions.
"It is very similar to the Muslim ban litigation in these respects, and recall that the lower courts did issue preliminary injunctions in those cases," Golove said. "Ultimately, however, the Supreme Court intervened to lift those injunctions and then ultimately to uphold the president’s latest executive order. A similar pattern could play out in this case as well, but it is impossible to say or predict with any confidence at this stage."
So we can Verify a lawsuit itself cannot stop the president from making preparations for the wall, a preliminary injunction can, but even that, can be overturned.
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