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By Allan Smith
President Donald Trump acknowledged Friday in declaring a national emergency on the southern border that the move is likely to face an uphill battle in court.
But what could make its defense more difficult is the announcement itself, legal experts say.
In his remarks, Trump said that while he was successful in securing more than $1.3 billion in funding from Congress for additional border fencing, he wants to build a wall more quickly.
“I could do the wall over a longer period of time,” Trump said. “I didn’t need to do this. But I’d rather do it much faster.”
Speaking about the expected legal challenges to his declaration, Trump laid out in a sing-song cadence how he thought those battles would play out.
“And we will have a national emergency, and then we will then be sued, and they will sue us in the 9th Circuit, even though it shouldn’t be there,” Trump said. “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.”
Mimi Rocah, a former federal prosecutor and legal analyst for NBC News and MSNBC, said Trump’s remarks in announcing the emergency declaration would make his lawyers’ job harder.
“Trump made his argument, and the job of lawyers trying to convince courts that he has, in fact, declared a legitimate national emergency, much more difficult,” Rocah told NBC News. She added that Trump’s line about not having to make the declaration was “the clincher” for demonstrating that there is not an emergency at the southern border.
On Sunday, Democratic Rep. Adam Schiff of California — the House Intelligence Committee chairman — also noted Trump’s remarks.
“In saying just the other day that he didn’t really need to do this — he just wanted to do it because it would help things go faster — he’s pretty much daring the court to strike this down,” Schiff said on CNN’s “State of the Union,” adding that “it’s hard to imagine a poorer case.”
It was already legally questionable whether the National Emergencies Act of 1976 could be invoked to divert funds that Congress had refused to appropriate. State attorneys general and congressional Democrats have signaled plans to sue the administration over the declaration, and advocacy groups have already filed lawsuits as Trump plans to divert nearly $7 billion from a combination military construction projects, counternarcotics programs, and a Treasury Department asset forfeiture fund the project.
Speaking on ABC’s “This Week,” California Attorney General Xavier Becerra, who is planning to sue the administration, cited Trump’s remarks as part of his argument that Trump overstepped his legal bounds.
“He has also said he knows he’s going to lose in court, and he’s hoping that he can count on a conservative court in the Supreme Court to give him a victory because he knows he’s going to lose all the way up the ladder of the court — the federal court system,” Becerra said.
Officials familiar with the plans for a legal challenge told NBC News that Becerra is leading several states to file suit “imminently,” and the coalition is expected to include New Mexico, Hawaii, Oregon, Connecticut and Minnesota.
Harvard Law professor emeritus Alan Dershowitz, whose legal commentary has found a receptive audience in the Oval Office, told NBC News that Trump’s remarks would no doubt be featured in a challenge.
“His statements will certainly become Exhibit 1 in the lawsuit, just as they did in the previous cases involving the travel ban,” Dershowitz said. “No way of knowing whether the current Supreme Court will take them into consideration.”
As was the case during the challenges to the president’s travel ban, the question of whether outside statements will be taken into consideration is of high importance. Courts could opt to confine any debate over the legality of the national emergency to the “four corners” of the written declaration itself.
“Trump’s speech further undercut his already compromised credibility,” former U.S. attorney and NBC News contributor Harry Litman said, adding it “would be a mistake to see that point as necessarily decisive in the case, and people are generally overestimating the odds that Trump will lose at the end of the day.”
Litman told NBC News that he’d “put at a tossup” the chances of Trump eventually winning or losing in court.
“Even assuming a court believes Trump is lying, the statute seems to leave it up to him to decide whether there’s an emergency, and courts will be cognizant of not hamstringing future, honest Presidents,” Litman continued. “One way they could do that, however, would be to skip past the deference question and find that the emergency powers are not properly invoked based on” the sources of funding Trump seeks to divert.
Rocah added that Trump’s “mocking” of the 9th U.S. Circuit Court of Appeals “won’t help him with any judges.”
Supreme Court Chief Justice John Roberts has “made clear that he does not approve of Trump’s constant politicization of the judiciary for his own purposes,” she said. “Insulting federal judges is not a good strategy.”
Republican Sen. Lindsey Graham of South Carolina told CBS’s “Face the Nation,” however, that he did not think the president’s comments undercut his legal argument.
“I think the president has been making a persuasive case that the border is broken,” he said. “I support his desire to get it done sooner rather than later.”
