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Law Professor Jonathan Turley On The Legal Fight Over The Border Wall


For more on the legal challenges to President Trump's emergency declaration, we're joined now by Jonathan Turley. He's a law professor at George Washington University. Good morning.

JONATHAN TURLEY: Good morning, Lulu.

GARCIA-NAVARRO: Just an FYI, I have a bit of a cold.

We just heard about one lawsuit being brought against the president by landowners and other stakeholders along the southern border. Do they have a case?

TURLEY: Well, they have a case, but I'm afraid I don't believe they have a particularly strong case.


TURLEY: The reason is that the Congress passed the National Emergencies Act in 1976, and they gave a president virtually unfettered authority. In fact, it really doesn't even define what an emergency is.

So there's two ways to challenge this. One is the source of the authority, which is that act. That really - I don't think that dog will hunt, even though members of Congress are talking about that as the challenge. And the second one is the source of the funds.

Now, that one may have more of a real possibility in terms of a challenge. But even that is going to be a rather, you know, long row to hoe because they gave the president over a billion dollars, and he's now identified at least three sources of largely undedicated funds that he can use. Even if you knock out half of those, he's still over $5 billion.

GARCIA-NAVARRO: Well the ACLU, El Paso County, the government of California have also filed or say they're going to file lawsuits. And again, I want to ask you about one particular thing because people are noting the president's Rose Garden press conference where he said this.


PRESIDENT DONALD 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.

GARCIA-NAVARRO: I didn't need to do this. This isn't the first time the president's words have been used against him in court challenging.

TURLEY: (Laughter) No, it's not. And he really has a remarkable record in undermining his own administration. And courts have actually used his statements on Twitter and other - in other forums against him. But that's unlikely to be enough because this is a problem, in some ways, of Congress' making.

For years, many of us have begged Congress to stop giving presidents unfettered authority, stop appropriating billions of dollars with few conditions. And they have refused to do that. And this is sort of the chickens coming home to roost. They gave him a stature with unfettered authority and gave him billions with limited conditions, and he'll use both of those.

GARCIA-NAVARRO: It seems that this is something that we're coming up against a lot in the Trump presidency, where the limits of the presidential authority are being tested all the time, and they're being tested in the courts. I guess the big question is, how friendly will the courts be to these cases because presidential authority is an open question?

TURLEY: It is. And I hate to be a doomsayer, but I think many courts would view this with a great deal of skepticism.

You know, Oliver Wendell Holmes once said, if my fellow citizens want to go to hell, I will help them; it's my job. And what he was saying is, I'm not here, really, to say what's a good policy or bad policy, what's good legislation or bad legislation. I'm here to say what legislation says. And that's what Congress says is that it's a national emergency because the president says it's a national emergency.

GARCIA-NAVARRO: And he gets to define that.

TURLEY: That's right. And when they go to court, the judge is going to say, wait, hold it. You guys reserve the right to reverse this. You can actually rescind an emergency. And instead of doing that, you're coming to me and asking me to do it.

GARCIA-NAVARRO: When you're saying you can rescind an emergency, Congress can actually do that.

TURLEY: That's right, by majority vote of each house. And frankly, I think they should. Now, it does get tougher because that is like a form of legislation. It's a resolution. But the president can veto it.


TURLEY: So you do need a supermajority. And the odds are they probably don't have the votes for that.

GARCIA-NAVARRO: So in the few seconds we have left, what do you predict?

TURLEY: I think that he's going to prevail. And if they challenge him on his right to declare an emergency, I think that will be a spectacular failure. They'll have to focus on the source of the funds. But I don't think that's going to get them all the way they need to go to stop this construction.

GARCIA-NAVARRO: Jonathan Turley is a law professor at George Washington University. Thank you very much.

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