The challenge for the Democrats is getting a federal court to supply the result that they could not secure in their own branch of government. If they are unable to secure a majority of the 535 members which make up both houses of Congress, they are unlikely to change the result with the single vote of an unelected federal judge.
George Conway, a conservative lawyer — and the husband of White House counselor Kellyanne Conway — who has been critical of the president, tweeted that Trump’s comment “should be the first sentence of the first paragraph of every complaint filed this afternoon.”
Former US attorney Joyce Vance tweeted that Trump’s comments were a “gift to all the lawyers preparing to sue him.” Elizabeth Goitein of the Brennan Center for Justice tweeted that they were “plaintiffs’ Exhibit A.” Harvard law professor Laurence Tribe tweeted, “Some emergency!” Adi Kamdar, a fellow at the Knight First Amendment Institute, tweeted, “The brief practically writes itself.”
Legal and political experts
Lawfare blog writes that for 39 years, the US has been under a state of emergency for various reasons, and notes that a 1979 order that is still in effect today was first signed by President Jimmy Carter 10 days into the Iran hostage crisis.
The ACLU called the decision a “clear abuse of presidential power”, and warned Republicans: “The chickens will come to roost when the next president uses these powers to call a national emergency on gun control or climate change.”
According to a CBS News poll, two-thirds of Americans said this month that they oppose declaring a national emergency to build the wall.
But a majority of Republicans – 73% – back the plan.
Pollster Nate Silver cautioned that it could harm Mr Trump’s re-election prospects, tweeting “it’s unclear whether it would fade into the background as it got tied up in the courts, or would remain a salient issue for some time”.
Brianne Gorod of the liberal-leaning think tank the Constitutional Accountability Center told the Associated Press that a national emergency is not “a blank cheque to invoke ’emergency’ powers simply because he couldn’t get what he wanted through the normal political process”.