President Donald Trump anticipated that his national emergency declaration at the border would face legal challenges. It already has. So he’s gearing up for battle — including in the Ninth Circuit Court of Appeals that he’s lamented before.
On Tuesday, Trump reacted to a lawsuit filed Monday by 16 states, including California, New York, and Michigan, over his decision to declare a national emergency in an attempt to get funding for his border wall.
“As I predicted, 16 states, led mostly by Open Border Democrats and the Radical Left, have filed a lawsuit in, of course, the 9th Circuit!” he wrote. “California, the state that has wasted billions of dollars on their out of control Fast Train, with no hope of completion, seems in charge!”
(Trump initially wrote that 16 cities had sued but deleted and rewrote the tweet.)
As I predicted, 16 states, led mostly by Open Border Democrats and the Radical Left, have filed a lawsuit in, of course, the 9th Circuit! California, the state that has wasted billions of dollars on their out of control Fast Train, with no hope of completion, seems in charge!— Donald J. Trump (@realDonaldTrump) February 19, 2019
The lawsuit was filed in the US District Court for the Northern District of California, which is based in San Francisco. Cases from that court are appealed to the Ninth Circuit, meaning the case could eventually wind up there, but it won’t right away.
While announcing the national emergency on Friday, Trump predicted a complaint would wind up in the Ninth Circuit and eventually land at the Supreme Court in a bizarre singsong voice.
“We will have a national emergency, and we will then be sued, and they will sue us in the Ninth Circuit, even though it shouldn’t be there, 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,” Trump said.
On Tuesday, he also went after California’s “Fast Train project,” claiming its cost overruns are becoming “world record setting.” As Vox’s Matt Yglesias recently explained, California had plans for a statewide high-speed rail network, but newly elected Gov. Gavin Newsom essentially canceled them.
Trump seems to be attacking California specifically because that state and Attorney General Xavier Becerra are leading the national emergency complaint.
Why the states are suing
As soon as Trump declared the national emergency on Friday, California indicated that a lawsuit was on the way, with Newsom and Becerra telling the White House in a joint statement, “California will see you in court.”
The 16 states that sued on Friday all have Democratic attorneys general, and all but one — Maryland — have Democratic governors. The complaint seeks a preliminary injunction on the emergency declaration and lays out the objections. The states say they collectively stand to lose millions in federal funding that will now be diverted to the border wall. (Trump has laid out plans to divert some $6.7 billion for wall construction.) They also say that construction will cause “irreparable environmental damages” to the natural resources of California and New Mexico.
The complaint argues that Trump’s declaration has no objective basis, citing Trump’s own comments. On Friday, Trump said he didn’t “need” to declare a national emergency but is doing so because it’s “faster.”
“President Trump treats the rule of law with utter contempt,” Becerra said in a statement announcing the lawsuit on Monday. “He knows there is no border crisis, he knows his emergency declaration is unwarranted, and he admits that he will likely lose this case in court.”
“Diverting necessary funds from real emergencies, crime-fighting activities, and military construction projects usurps Congressional power and will hurt Americans across the country,” New York Attorney General Letitia James tweeted after the lawsuit was filed. “We won’t stand this abuse of power.”
BREAKING: We’ve joined 15 AGs in filing a lawsuit challenging President Trump’s declaration of a national emergency & his attempt to divert funding appropriated by Congress for other purposes.— NY AG James (@NewYorkStateAG) February 19, 2019
Declaring a National Emergency when one does not exist is immoral and illegal.
This is just one of multiple legal challenges Trump is likely to face over the emergency declaration. The American Civil Liberties Union and the nonpartisan nonprofit group Protect Democracy have also said they plan to sue.
Trump has a bone to pick with the Ninth Circuit
Trump has made no secret of his distaste for the Ninth Circuit Court of Appeals.
The court ruled against him on two versions of his travel ban proposal and issued a partial injunction against the third. In June 2018, the Supreme Court overturned its ruling on a ban that was much narrower than Trump’s initial attempts and allowed it to remain permanently in effect.
Ninth Circuit courts put a hold on Trump’s attempts to end the Deferred Action for Childhood Arrivals (DACA) program, which protects some 700,000 unauthorized immigrants who arrived in the US as children, and on his attempt to strip Temporary Protected Status from immigrants who have lived in the US for years.
In November, a Ninth Circuit judge put a temporary hold on Trump’s attempt to implement asylum restrictions at the southern border that would ban migrants who cross illegally outside ports of entry from seeking asylum. The Supreme Court upheld that ruling.
The asylum ban case ignited a rare public back-and-forth between Trump and Supreme Court Chief Justice John Roberts when the California court ruled in November. Trump claimed the judge ruling against him was an “Obama judge,” and Roberts rebuked him, saying there are no “Obama judges, or Trump judges, or Bush judges, or Clinton judges.” Trump responded and insisted that his initial take was correct.
Sorry Chief Justice John Roberts, but you do indeed have “Obama judges,” and they have a much different point of view than the people who are charged with the safety of our country. It would be great if the 9th Circuit was indeed an “independent judiciary,” but if it is why......— Donald J. Trump (@realDonaldTrump) November 21, 2018
.....are so many opposing view (on Border and Safety) cases filed there, and why are a vast number of those cases overturned. Please study the numbers, they are shocking. We need protection and security - these rulings are making our country unsafe! Very dangerous and unwise!— Donald J. Trump (@realDonaldTrump) November 21, 2018
The Ninth District has for quite some time been a sort of boogeyman for Republicans beyond Trump. As Vox’s Dylan Matthews recently explained, it has long been stereotyped as a liberal outlier whose decisions are often overturned in the Supreme Court. But research suggests it’s not the most liberal: One study based on law clerk political donations found that clerks in the First Circuit, based in Boston, and the Second Circuit, in New York City, were more liberal. And the Ninth Circuit isn’t the most frequently overturned court.
But Trump yet again finds himself on a collision course with the Ninth Circuit, this time over his national emergency declaration. So the attacks on the court, merited or not, will continue.