By Kate Irby
McClatchy Washington Bureau
WASHINGTON, D.C. — California is using President Donald Trump’s own tweets against him in the state’s lawsuit seeking to block his declaration of a national emergency at the Mexico border.
The lawsuit filed Monday by officials in California and 15 other states cites a string of Trump’s tweets and public statements dating back to 2014 to argue that the illegal border crossings he wants to address are not a crisis worthy of the powers he’s attempting to seize.
“The salient facts regarding the ostensible ‘crisis’ that President Trump repeatedly invoked in these numerous statements have not significantly changed since his inauguration as President in January 2017,” states the lawsuit, filed in a California district court on Monday.
California’s case begins with an October 2014 tweet in which Trump linked Islamic State militants to illegal border crossings. “The fight against ISIS starts at our border!” he wrote, referring to the conflict that has played out mostly in Iraq and Syria.
Trump posted the most recent tweet cited in the lawsuit on Feb. 3, when he said “If there is no Wall, there is no Security. Human Trafficking, Drugs and Criminals of all dimensions — KEEP OUT!”
The lawsuit also cites Trump’s statement at his Rose Garden news conference last week when he said about the emergency declaration, “I could do the wall over a longer period of time. I didn’t need to do this.”
Because Trump’s rhetoric hasn’t changed in years, the lawsuit calls into question Trump’s motivation behind declaring a national emergency now, rather than earlier.
“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,” California Attorney Xavier Becerra said in a written statement. “He is willing to manipulate the Office of the Presidency to engage in unconstitutional theatre performed to convince his audience that he is committed to his ‘beautiful’ border wall.”
The emergency declaration gives Trump power to redirect money that Congress denied him for the border wall, bypassing lawmakers who are charged with setting national spending priorities.
Trump said in comments to the media Tuesday that he had the “absolute right” to declare a national emergency.
Trump’s tweets — a source of constant apprehension for lawmakers and particularly for his fellow Republicans — have been cited in previous lawsuits challenging his policies to mixed results.
Critics of Trump’s so-called travel ban limiting visits for residents of certain mostly Muslim majority nations failed in using the president’s public remarks against him in court.
“In the Muslim ban case, we had to show a motive, so public statements on it were central to the case,” said George Mason University law professor Ilya Somin, who submitted a brief on behalf of constitutional law scholars in the travel ban case. “In this case, even if the courts find his stated motivation is true they can still declare the action unconstitutional.”
The lawsuit over the travel ban was ruled unconstitutional by multiple courts, with multiple judges citing Trump’s tweets and public statements calling it a Muslim ban as reason it was unconstitutional.
Ultimately, it was upheld by the Supreme Court in April 2018, which ruled that Trump’s public comments did not outweigh a president’s authority to deny non-citizens from coming into the country.
But in the ruling on the travel ban, the Supreme Court set a legal standard for treating tweets the same as his other public statements. White House officials have also said Trump’s tweets are “official statements.”
But, Somin said, California’s case contesting the emergency declaration could succeed without making much use of Trump’s Twitter account.
“Even if he can declare an emergency, that doesn’t mean he can use that money for a wall,” Somin said. “And if you’re going to argue on the emergency issue itself, the tweet history isn’t the best case to make compared to other public comments” such as Trump saying from the Rose Garden Friday that “I didn’t need to do this.”
Michael C. Dorf, a former law clerk at the Supreme Court and the 9th Circuit Court of Appeals and now a constitutional law professor at Cornell University, said the tweets are not directly relevant in this case. The argument here can hinge less on Trump’s state of mind, which will possibly make it easier for California and the other 15 states than it was in the case of the travel ban.
“Plaintiffs don’t have to show there is no emergency here in order to win, though they could do that,” Dorf said. “They can also win by saying there is no need for use of the military and therefore would not fall under the national emergencies statute, which is an easier argument to make.”
