Trials & Litigation

President Donald Trump/

Lawsuits are being threatened as President Donald Trump reportedly considers using money for disaster aid or military construction projects to build his border wall without congressional approval.

Trump’s focus on disaster relief was reported by the New York Times, the Washington Post and the Wall Street Journal. All the stories rely on unnamed sources. The idea is to tap a $13.9 billion fund approved in February 2018 to provide disaster relief for California, Florida, Puerto Rico and Texas.

One possible legal impediment is the Stafford Act, a law governing disaster relief, according to the New York Times. There also could be challenges to an emergency declaration needed before Trump can use unused funds under the National Emergencies Act of 1976.

Several experts have noted that courts tend to be reluctant to second guess a president’s judgment on what constitutes a national emergency. Trump told Fox News that “the law is 100 percent on my side.”

But the American Civil Liberties Union Immigrants’ Rights Project already is eyeing a challenge. “The use of emergency powers to build a wall is unlawful, and we are prepared to sue as needed,” Lee Gelernt, deputy director of the project, told the Washington Post.

The Center for Biological Diversity has filed multiple lawsuits. In December, the U.S. Supreme Court refused to hear an appeal of a California judge’s decision rejecting allegations that the administration isn’t complying with environmental laws as it pursues the border wall, Reuters reported.

Democratic leaders in the House of Representatives also are considering whether to sue if Trump presses ahead, but the fear is that they would not have standing to sue, an unnamed leadership aide tells the Washington Post. The House could file an amicus brief, however, if state attorneys general or landowners who have property at the border were to sue, according to the story.

Many property owners in Texas might object to the government’s attempt to use eminent domain to seize the property or to the value placed on their property, according to the Washington Post.

When President George W. Bush signed a law authorizing border fencing in 2006, 334 eminent domain lawsuits were filed, according to the Texas Civil Rights Project. About 60 to 70 cases mostly dealing with payments are still pending.

The Army Corps of Engineers and U.S. Customs and Border Protection have sent letters to hundreds of property owners seeking access to their properties to begin assessing possible sites for the wall, according to the Texas Civil Rights Project. The administration also has filed about a dozen cases against landowners to get access for measures such as soil sampling and measuring.

The group is running ads and visiting homes to let people know they don’t have to grant access.

The Roman Catholic Diocese of Brownsville, Texas, is contesting a request to survey land that includes the La Lomita chapel, which was built more than 150 years ago. A lawyer working on the case, Mary McCord, told the Washington Post that seizure of the church’s land would substantially burden the exercise of religion.

Property rights could be an argument that would appeal to conservatives on the U.S. Supreme Court, according to the liberal publication Think Progress.

“The best chance of defeating Trump’s proposal is to get one or more conservatives on the Supreme Court—conservatives who loathe eminent domain with the same white-hot intensity that they hate Obamacare and Hillary Clinton—to understand that ordering the military to take people’s land is a direct attack on core conservative values,” the article said.