Noor Mandviwalla, LLB
On 15 February, Donald Trump took his stance on the ‘build a wall’ campaign to an extreme by declaring a national emergency under the National Emergencies Act of 1976. Additionally, through an Executive Order, the Trump Administration announced that $6.7 billion, in addition to federal funding, was set to be allocated for the construction of the wall along the Southern border.
Following the government’s reopening after the 35-day partial shutdown, Congress temporarily ended the wall dispute by approving a $1.375 billion appropriation for the construction of fencing along the border. Throughout this, Congress made it clear that this funding was not to be utilised for the construction of Trump’s proposed wall.
In defiance of Congress, Trump has seemingly manufactured a ‘crisis’ centred around the influx in unlawful immigration, drug trafficking, and increased crime rates, all supposedly coming from beyond the southern border, as a basis to instigate a national emergency. However, concrete data and evidence indicate that there is no objective basis for Trump to do so. For example, the Customs and Border Protection reports show that unlawful entries from the southern border into the USA are at 45-year lows; these reports also indicate that drugs are more likely to be smuggled through, and not in-between, official ports of entry.
…his construction of a wall along the southern border is unlawful and unconstitutional
On 18 February, a coalition of 16 states (consisting of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon and Virginia) filed a lawsuit against President Trump in the Federal District of San Francisco and asked the Court to declare that Trump’s declaration of a ‘national emergency’ and diversion of federal funds towards his construction of a wall along the southern border is unlawful and unconstitutional. The Court has grounds to declare Trump’s actions as so, under the United States Constitution Section 1331, which gives the court jurisdiction of all civil actions arising under the Constitution laws, and Section 2201, which gives the Court the authority to grant declaratory and injunctive relief.
The action was brought forward by the states for various reasons. Firstly, because the redirection of federal funding means that the plaintiff states would collectively lose millions of dollars in funding that their national guard units receive for counter-drug activities; as well as millions of dollars that would have been received for law enforcement programs from the Treasury Forfeiture Funds, thus potentially harming the public safety of the states. Secondly, the reallocation of this funding would divert money away from military construction projects located in the plaintiff states, inherently instigating damage to the economy as well as proprietary interests. Thirdly, the construction of the wall along the State of California and New Mexico would cause irreversible environmental damage to those areas and the States’ natural resources.
The House of Representatives voted 245-182, on 26 February, to block this declaration of emergency, however, the Democratic party did not win enough support from the Republican party to overcome Trump’s threatened veto. The resolution will now have to be taken up to the Senate within 18 days. The majority of legislation that goes up to the Senate requires 60 out of 100 votes to pass, however, because this specific resolution is “privileged”, it only requires 51 votes. Therefore, as of now, the future of whether Trump’s vision of completing the wall along the southern border will become a reality, or whether the United States’ legislative and judicial branches will halt this development, remains unclear.