Colorado Attorney General Phil Weiser is exploring whether to file a lawsuit to stop President Donald Trump’s national emergency declaration for funding to build a wall along the U.S.-Mexico border.
Trump made the extraordinary move Friday, sidestepping a Congress that has refused to grant the White House the more than $5 billion in funding that it’s seeking for the controversial barrier. In a statement to The Colorado Sun, Weiser said his office is “analyzing how this declaration will affect Colorado and then deciding whether the state of Colorado should file a lawsuit or support one brought by others as a ‘friend of the court’.”
“A national emergency can only be declared, under the rule of law, with a legitimate basis,” Weiser tweeted Friday. “Today’s announcement threatens harm to millions, diverting funds from their proper purpose and undermining emergency preparedness. We will fight this action with every tool at our disposal.”
Officials in other states, including California, have already threatened to fight Trump’s national emergency declaration in court. The American Civil Liberties Union has vowed to take legal action.
Weiser, a Democrat elected in November, promised during his campaign to be a check on the Trump administration and has already announced plans to join lawsuits challenging its policies. Should Weiser sign Colorado onto a legal challenge against the emergency declaration, the state would be part of answering a major legal question that could impact the future of American presidential power: Can a president bypass Congress — and potentially the Constitution — to spend federal dollars on a policy goal?
Weiser on Friday said in a speech at the University of Denver that the federal government has made decisions in recent years that are against the rule of law and violate the Constitution. “And today, we have another example,” he said.
“To say ‘I want to have a policy goal that I can’t get through the legislative process as prescribed by the constitution and I will hijack this law to serve another end,’ no matter what the end is, goes against the rule of law,” he added.
Weiser said the question of whether Colorado joins onto the legal actions against the declaration depends on whether the state has standing. California and New Mexico clearly do because they share a border with Mexico and, thus, would be where the wall is built.
“Whether Colorado does (have standing) will depend on some details that we don’t know yet,” he said at DU. “We will be looking hard at it. I can tell you that if we are not party to the suit, we will at least be (filing a legal opinion in support), fighting hard against this injustice and violation of the rule of law.”
Colorado’s congressional delegation is split on Trump’s decision. U.S. Sen. Cory Gardner, a Republican, told Colorado Public Radio this week that he personally lobbied the president against the idea.
Democratic members of the state’s congressional delegation are, predictably, very much opposed.
“Trump’s plan to circumvent Congress and declare a state of emergency for his personal vanity project is an astonishing abuse of power,” said Colorado Gov. Jared Polis, a Democrat and former member of Congress. “This is not only a waste of taxpayer dollars, but a distraction from the many real issues that affect hardworking Coloradans.”
While presidents have the power to issue national emergency orders, they are typically used to free up funds for things like natural disaster response and not for policy goals. Democrats warn that broadening the use of such orders is a dangerous precedent to set and is potentially unconstitutional since Congress is meant to have power over federal spending.
Trump argued that his immediate three predecessors had made emergency declarations, although the presidents he cited did not use emergency powers to pay for projects that Congress wouldn’t support.
Congressional aides say there is $21 billion for military construction that Trump could tap, but, by law, it must be used to support U.S. Armed Forces. The Defense Department declined to provide details on available money.
The declaration caps a tumultuous two months of negotiating and political warfare in the nation’s capital, with consequences likely to last through next year’s campaign.
Trump sparked a shutdown before Christmas after Democrats snubbed his $5.7 billion demand for the wall. The closure denied paychecks to 800,000 federal workers; hurt contractors and people reliant on government services; and was loathed by the public.
With polls showing the public blamed him and GOP lawmakers, Trump folded on Jan. 25 without getting any of the wall funds. His capitulation was a political fiasco for Republicans and handed Pelosi a victory less than a month after Democrats took over the House and confronted Trump with a formidable rival for power.
The Associated Press contributed to this report.