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El Paso v. Trump: The Illegality of the “National Emergency” Explained

On February 15, 2019, President Trump issued Proclamation No. 9844 because “[illegal immigration] presents a border security and humanitarian crisis that threatens core national security interests.” The declaration attempted to authorize the use of armed forces and immediately make available financial means for border wall construction.

Approximately one month prior to the declaration of Presidential Proclamation No. 9844, President Trump requested $5.7 billion for “construction of a steel barrier for the Southwest border,” which Congress responded to by allowing only $1.375 billion—specifically for pedestrian fencing along the Rio Grande Sector—via the CAA. Disappointed by the sum approved by Congress, the Trump administration sought to make up for the denied funds by declaring a national emergency to reallocate money from other departments. The president planned to reallocate $2.5 billion from funds meant to counteract transnational organized crime (provided pursuant to U.S. Code 284) and $3.6 billion from military construction (provided pursuant to U.S. Code 2808) to build 11 border wall projects. 

Besides President Trump’s inaccurate rhetoric that intentionally suggested an illegitimate, immediate need for militarization and defense along the Southern border, there is a flaw in his declaration—it plainly defies the CAA.

The CAA specifically states that “None of the funds made available in this or any other appropriations Act may be used to increase … funding for any program, project, or activity in the President’s budget request for (the) fiscal year” (CAA § 739). These funds are essentially concrete. The original border wall funding proposed in the fiscal year could not be increased, nor could the funds be allocated from other sources to contribute to border wall funding. The president’s plan to utilize Codes 284 and 2808 was not a viable legal process, as it “flout(ed) the cardinal principle that a specific statute controls a general one and violate(d) the CAA,” according to the Memorandum Opinion.

President Trump’s violation of the CAA created grounds for El Paso County and Border Network for Human Rights to sue President Trump for what they considered to be “ridiculous idea.” The court concluded that because of this violation, the proclamation itself was unlawful. Though further legal processes—such as the opportunity to respond to El Paso’s Proposed Preliminary Injunction—give the administration a chance to prevail, this case still significantly impedes both Donald Trump’s border wall campaign promise and the effects of the ongoing national emergency despite its unlawfulness as a result of violating the CAA.

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