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Policy Letter

Amicus Brief: Border Wall Emergency Violates Constitution

(Photo: U.S. Customs and Border Protection)

In May, POGO organized an amicus brief of former Republican members of Congress supporting a lawsuit challenging the constitutionality of President Donald Trump’s declaration of a national emergency to construct a wall along the southwestern U.S. border. That declaration came after Congress refused to approve funds for that purpose. The former members of Congress argue that the declaration is an illegal usurpation of the power to appropriate—a power that the Constitution explicitly gives to Congress.  Amici conclude their brief as follows:

The Constitution entrusts Congress with the exclusive power to make appropriations. It is Congress’s duty to guard that power from all threats, whether they come from the judiciary or the executive, from Republicans or Democrats. This is not a partisan issue. This is a separation-of-powers issue. If the President wants a wall, he must go through Congress. The Constitution that he (and amici) pledged to uphold and defend demands it.   

Update (October 11, 2019) On October 11, the U.S. District Court for the Western District of Texas found that the president’s proclamation was illegal and that the president exceeded his authority under the “Consolidated Appropriations Act” (CAA). Because it found statutory grounds for this holding, it did not address the constitutionality of the president’s actions.

Update (April 8, 2020): The government appealed the ruling, and the Fifth Circuit Court of Appeals temporarily blocked the district court's order. We worked with the former members of Congress to file another brief with the Fifth Circuit before it hears the appeal.