Congress

Trump’s wall words will be used against him

President may have undercut his own argument that the border emergency is, well, an emergency

Protesters erect a cardboard wall in front of the Trump International Hotel Las Vegas in 2016. (Bill Clark/CQ Roll Call file photo)

If there were a hall of fame of legal self-owns, there would be a spot of honor for a line Friday from President Donald Trump as he announced that he would declare a national emergency to fund a wall on the U.S.-Mexico border.

To do so, Trump plans in part to use the National Emergency Act of 1976, but he undercut his argument that it was an emergency at all.

“I didn’t need to do this,” Trump said from the Rose Garden, “but I’d rather do it much faster.”

The next sound was lawyers across the country frantically adding Trump’s words to lawsuits to stop the president’s action. “Whatever a national emergency may be, that’s not it,” Supreme Court litigator Neal Katyal said. “That quote is going right in the lawsuit.”

And there was little doubt about how prominent it should be. “That’s plaintiffs’ Exhibit A,” said Elizabeth Goitein, a national security expert at the Brennan Center. “Consider putting this on page 1,” Supreme Court litigator Deepak Gupta tweeted to any lawyers crafting petitions.

“This quote should be the first sentence of the first paragraph of every complaint filed this afternoon,” said conservative appellate lawyer George Conway, the husband of White House adviser Kellyanne Conway.

And Omar Jadwat, a lawyer for the American Civil Liberties Union, which has called the emergency declaration an abuse of presidential power, tweeted: “keep talking mr president.”

Trump’s statement, directly contrary to his interests, isn’t necessarily a silver bullet for challengers. And it doesn’t mean that the federal courts ultimately will stop Trump from using his powers to shift about $6.7 billion from the Defense and Treasury departments for the project.

But it makes life tougher for the Justice Department lawyers who will defend the emergency declaration and ensures that, much like Trump’s travel ban, the president’s words will play a key role in the legal fight over his actions.

The ACLU announced Friday that it would file a lawsuit early next week. “By the president’s very own admission in the Rose Garden, there is no national emergency,” executive director Anthony Romero said.

The central question will be whether the national emergency is actually a pretext to get around the Constitution’s requirement that Congress is in charge of appropriations.

For lawmakers and other critics already pointing to immigration, crime and drug trafficking statistics to argue there is no emergency on the border, Trump’s line amazed.

“Trump’s own admission that this is not a national emergency,” Missouri Democratic Rep. Emanuel Cleaver II tweeted in response to the line. “You can't make this stuff up.”

“Hint: if you ‘didn't need’ to do it, then it wasn't an emergency, to begin with,” California Democratic Rep. Katie Hill said.

Trump also used the Friday announcement to describe what he thought would happen with the legal challenges to the emergency declaration, and it tracks fairly close to what many legal experts predict could happen.

“We will have a national emergency, and we will then be sued, and they will sue us in the 9th Circuit, even though it shouldn’t be there, and we will possibly get a bad ruling, and then we’ll get another bad ruling, and then we’ll end up in the Supreme Court, and hopefully, we’ll get a fair shake, and we’ll win in the Supreme Court, just like the [travel] ban,” Trump said.

Trump’s words about national security were also prominent in the travel ban fight. As a candidate, he had called for a “total and complete shutdown of Muslims entering the United States,” and challengers argued that and other statements showed the ban was actually a pretext for a discriminatory “Muslim ban.”

Lower courts stopped the ban. But the Supreme Court, in a 5-4 decision in June that split the court along familiar ideological lines, ultimately ruled that Trump had a sufficient national security justification for a policy that on its face “says nothing about religion.”

Still, the travel ban case showed that conservative justices are reluctant to second guess a president’s judgment about what is a national emergency and might be even more so when it comes to the wall, since Congress not only gave the president broad authority but still has the ability to take it away.

“My initial assessment is that what President Trump announced is legal,” Utah Republican Sen. Mike Lee said. “Whether or not it should be legal is a different matter. Congress has been ceding far too much power to the executive branch for decades. We should use this moment as an opportunity to start taking that power back.”

The setting of Friday’s line matters, too. In the legal battle over the travel ban, the government tried to dismiss the relevance of Trump’s statements because he made them as a candidate, said Brianne Gorod, chief counsel at the liberal Constitutional Accountability Center.

“That won’t be an option here,” Gorod said.

Even before Friday’s line, Goitein, of the Brennan Center, made the case that Trump was undercutting his national security claim by waiting more than three weeks since he first publicly spoke about using the process to get funding for a wall.

“Of course, Trump’s hesitation also belies his claim that there is an emergency at the border,” Goitein wrote in The Atlantic. “Presidents don’t dawdle in the face of real emergencies.”

Watch: Senate leaders interrupt Grassley speech to announce Trump’s support for deal, national emergency plans

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