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Trump's National Emergency Faces Legal Challenges On 3 Main Fronts


We're going to begin our program today with President Trump's declaration of a national emergency to build a wall on the U.S. border with Mexico. Congress has authorized nearly $1.4 billion for border security, but under the president's emergency declaration, he is claiming a total of $8 billion for the project. The president is already facing fierce opposition on several fronts. To look at how this might play out, we've called NPR national security correspondent Greg Myre, who's with us now.

So, Greg, who are the leading critics so far? And what actions are they planning?

GREG MYRE, BYLINE: So the opposition exists, I think, really in three main fronts - Congress - mostly Democrats, but some Republicans as well. We're expecting to see multiple legal challenges in the courts. And then there's those who've been promised money or promised something that may now be taken away.

MARTIN: And can we separate those things and look at them each one at a time? So, first of all, what is Congress likely to do?

MYRE: So they could object with a resolution. This is probably pretty likely in the House, controlled by the Democrats, uncertain in the Senate, which is controlled by the Republicans. So even if they get it together, they probably don't have enough votes to override a veto by Trump.

MARTIN: So what's the basis of Congress's objection?

MYRE: It's a sort of broad, fundamental principle of separation of powers and Congress having the power of the purse. Remember, we just had this five-week shutdown. Congress then got together, hammered out a deal, and the president actually signed that deal yesterday. But then, literally in the same breath, he said, I want billions of more dollars.

MARTIN: OK. So what are we hearing on the legal front?

MYRE: Already California's governor, Gavin Newsom, says his state will sue. The ACLU and others are saying the same thing. Legal scholars are saying this is going to be complicated. Presidents do have broad authority. They've claimed national emergencies about 60 times since the 1976 law. The courts are usually deferential to presidents when it comes to national security. And there are even some relevant laws here. I spoke about this with Scott Anderson, a legal scholar at the Brookings Institution, who's been writing about this issue.

SCOTT ANDERSON: One authority allows the president to build roads and fences along the U.S.-Mexico border to assist with drug interdiction efforts. The question then becomes, well, does a wall across the whole U.S.-Mexico border qualify as a fence?

MYRE: So the president's legal team will have ammunition. But Anderson and others think he is going to face pushback. And the president himself said that, saying he expects to be sued. He expects to even lose initially. But he says, in his own words, he hopes he can get a fair shake in the Supreme Court.

MARTIN: Where does the president want to get the money for the wall?

MYRE: Several pots. And the biggest one would be military construction. He wants to take about $3.6 billion away from that. Now, we don't know what projects those would be, but that means somebody is going to lose a project and money they've been promised. If it comes mostly out of the army, they're going to be upset. If it comes out of certain districts where congressmen have already boasted about this, they're going to be upset.

So you're going to see a lot of pushback and anger on the political level from people who lose money. And also, more broadly, there are some Republicans who support the president and support the wall, but they say they don't like this approach. Someday, there's going to be a Democratic president, and they say, what would stop that president from not getting money from Congress but then declaring an emergency to get money for health care or an environmental issue that they prefer?

MARTIN: That is NPR national security correspondent Greg Myre.

Greg, thank you so much for joining us.

MYRE: Thank you, Michel. Transcript provided by NPR, Copyright NPR.

Greg Myre is a national security correspondent with a focus on the intelligence community, a position that follows his many years as a foreign correspondent covering conflicts around the globe.