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Trump's National Emergency Declaration Is Likely To Face Constitutionality Challenges


Before President Trump even uttered the words national emergency, there was already a lot of talk about legal challenges. Here's the central question - is it constitutional for the president to ignore the decision of Congress not to give him all the money he wants for his border wall and instead get it through a declaration of national emergency? Today, Trump said he expects a court fight.


PRESIDENT DONALD TRUMP: 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.

CORNISH: NPR legal affairs correspondent Nina Totenberg is in the studio now. Hey there, Nina.


CORNISH: So how is the president actually justifying his emergency declaration?

TOTENBERG: The president says accurately that the emergency declarations like this have been invoked 58 times since the emergency law was enacted in 1976. And he does have broad power to act but not unlimited power. Since it's not yet entirely clear what precise provisions the president is relying on to get his money, we don't know exactly where the legal battle lines are going to be drawn. But first, he's going to have to prove that there is a national emergency. And he's already said things that will provide problems for his lawyers in court like this...


TRUMP: I could do the wall over a longer period of time. I didn't need to do this, but I'd rather do it much faster.

TOTENBERG: Well, obviously, if you don't have to do something, it isn't an emergency.

CORNISH: So how do legal experts think this will play out in the courts?

TOTENBERG: They seem to think that in the end, the courts are likely to defer to the president on the question of whether there's an emergency. Courts just don't like to second guess presidents on this kind of question. And the current Supreme Court conservative majority is even more deferential.

Still, the devil is in the details. There are going to be a bunch of lawsuits filed, likely by the House of Representatives, by landowners whose property the wall is going to be built on and by others who might be hurt - for instance, state or local governments who may be able to argue that money meant for one thing is being siphoned off illegally for another.

CORNISH: Now, let's get back to that question we posed earlier then. Does President Trump have constitutional authority to ignore Congress on a funding matter like this?

TOTENBERG: The House of Representatives is likely to argue that the president is doing more than just rejiggering more than $5 billion in already budgeted money. He's cutting away Congress's power of the purse, and in some instances, contradicting specific mandates. The White House will likely counter that the president has the power to reprogram money under existing laws and that it's no big deal, that it's been done before by other presidents.

CORNISH: Before we let you go, the Supreme Court also agreed to hear arguments about the census citizenship question. Remind us what's going on there.

TOTENBERG: This case is all about whether the administration can add a question on the census form that goes to every household in the country. The question asks the citizenship status for every person in the household. It's not been on the form since 1950 because Census Bureau statisticians after lengthy testing and repeated studies have repeatedly concluded in Democratic and Republican administrations that it would lead to lots of folks not filling out the form if any member of the household or a family is not a citizen.

Now, remember, the Constitution mandates a count every 10 years of every person in the U.S., not every citizen. In January, a federal judge in New York barred the addition of the question, concluding it would lead to a serious undercount. The Trump administration went directly to the Supreme Court because it said that the census forms have to be ready for printing by summer. And today, the Supreme Court, as expected, agreed to hear the case in April on an expedited basis.

CORNISH: That's NPR legal affairs correspondent Nina Totenberg. Nina, thanks.

TOTENBERG: Thank you. Transcript provided by NPR, Copyright NPR.

Nina Totenberg
Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.