Monday, February 18, 2019

Standing to Challenge the Emergency Declaration

by Michael C. Dorf

Last month, before President Trump had committed to declaring a national emergency in order to obtain funding for his border wall, I wrote a blog post in which I focused on what I called the "big picture" question posed by the statutory framework that allows the president to declare a national emergency that lasts for years. My bottom line was that Congress had failed in its obligation to oversee and participate in important matters of national policy. In my latest Verdict column, I continue focusing on the "big picture" by discussing how we got to Trump's emergency declaration and speculating on how challenges to it will fare in the courts.

Here I want to focus on one of what I called the "lawyers' questions" that I bracketed in my January post. There I warned that focusing on these details in a way concedes too much to Trump and his backers, because it tends to normalize the debate and channel it into a discussion of legal technicalities. In an effort to heed my own warning, I'll try to address today's lawyers' questions from a bird's eye perspective rather than from a worm's eye perspective.

Even so, I want to be clear that in focusing on the prospects for success of litigation attacking Trump's emergency declaration and border wall more broadly, I continue to think that these are secondary issues. The fundamental problem (which my Verdict column tackles directly) is the threat to constitutional democracy that emergency declarations in general and Trump's in particular pose.

The first lawsuit out of the gate seeking to invalidate Trump's emergency declaration was filed by Public Citizen on behalf of three south Texas landowners and an environmental group, respectively objecting to the imminent taking of their property and the denial of their access to a wildlife corridor that they currently enjoy. That is the first but it will not be the last lawsuit. Already California and other states have announced plans to sue--sooner rather than later.

The Public Citizen case and the expected California case typify the two main categories of litigation we can expect to see. In the former, people who will be adversely affected by the construction of the border wall sue to vindicate their interest in keeping their property or access to public land. In the latter, institutions and (one expects) individuals sue to vindicate their interest in keeping the funding provided by the programs from which Trump plans to divert funds.

In each of these categories of cases, ripeness is a potential obstacle. In addition to the emergency declaration, the White House released a Fact Sheet detailing how it plans to obtain border wall funding. Broadly speaking, the Fact Sheet identifies three pots of money: (1) the $1.375 billion included in the recent budget bill; (2) pools of money that the White House claims can be diverted without relying on the national emergency declaration; and (3) funds that the national emergency declaration allows to be diverted. Because the Fact Sheet states that "these funding sources will be used sequentially and as needed," any particular lawsuit may not state a ripe claim unless and until the administration relies on a particular source of funding.

But the key word there is "may." The spending bill itself limits not only the use of funds it appropriates for "pedestrian fencing;" it also imposes some limits on "funds made available by . . . prior Acts," which would include all of the sources of funds that the Trump administration has identified. Accordingly, any attempt to build fencing (or a wall) in five designated areas would be beyond the president's statutory authority. Moreover, because the spending bill imposes procedural requirements before any of its funding may be used in various (large) areas, it is easy to imagine the administration rather quickly blowing through or lacking access to the funding from the spending bill, and thus turning to other sources--including those made available by the dubious national emergency--rather quickly.

Accordingly, I think it likely that at least some lower courts will allow one or more of the lawsuits to proceed. I discuss what I think the SCOTUS would likely do in the Verdict column. For now, I want to note what I did not include in my list of likely lawsuits: a case by individual members of Congress or the House of Representatives.

Under the Supreme Court's 1997 decision in Raines v. Byrd, individual members of Congress have a very difficult time establishing legal standing, even when they complain about the usurpation of their authority. Raines was a lawsuit by Senator Robert Byrd and others alleging that the Line Item Veto Act violated Article I, Section 7. Although the Court would later approve the merits of that claim (in Clinton v. City of New York), individual legislators, the majority said in Raines, lacked a sufficient interest in vindicating the interests of Congress to permit the case to go forward. Although Raines did not completely eliminate legislator standing, it set the threshold very high.

Litigation by a house of Congress stands a somewhat better chance of succeeding. Thus, in US v. Windsor (which, on the merits, invalidated the Defense of Marriage Act), Justice Kennedy wrote for the majority that where the executive branch declined to defend a law, there was a strong argument for allowing a house of Congress to do so based on its institutional interest. The majority did not reach the question whether the House of Representatives had standing, because it found the executive's enforce-but-don't-defend stance sufficient to create standing. Justice Alito did reach the institutional standing question and would have ruled in favor of House standing; Justice Scalia, joined on this point by Chief Justice Roberts and Justice Thomas, would have found against House standing. Accordingly, of the current justices, we know that two oppose House standing and one favors it, while another four (the Democratic appointees) probably favor it.

But that was in a case in which the administration specifically declined to enforce a federal statute, and so the institutional interest of Congress was clear. The argument for standing in a challenge to Trump's diversion of funds to build his border wall is less clear, because it looks like a garden-variety claim that the administration is acting in violation of or without authorization from a statute. If I were arguing for congressional standing, I would say that unauthorized executive spending poses a special institutional danger. Article I, Section 9 of the Constitution forbids any money from being “drawn from the treasury, but in consequence of appropriations made by law.”

Would the argument work? Maybe, but the very fact that there's uncertainty highlights what, from the perspective of most other constitutional democracies, is an oddity of American-style judicial review. Under the Supreme Court's 2011 ruling in Bond v. US, individuals subject to a federal law have standing to object to that law on federalism grounds; the division of power between the states and the national government, Justice Kennedy wrote for the majority, aims to preserve individual liberty, not just the institutional interests of the states. The same principle applies to the doctrine of the horizontal separation of powers among the branches of the federal government.

Now it is one thing to say that, in addition to protecting states and the branches of government against overreaching, the doctrines of federalism and separation of powers respectively also protect individuals. But the Court's standing doctrine--which gives individuals standing more readily than it gives standing to legislators--seems at least a bit odd if not completely backwards.

In most other constitutional democracies, the question whether the executive had overstepped its authority would be teed up for the courts by an institutional challenge. In many of these countries, the case would start in the supreme or constitutional court. Here, we generally await a ripe case involving a relatively minor actor, such as the owner of a small plot of land in Texas, and litigation always starts in the lower courts (except for relatively inconsequential cases like interstate border disputes, which fall within the Supreme Court's original jurisdiction).

Yet in practice our system works like the others despite itself. Last week Trump predicted that the Ninth Circuit will block his border wall but then the SCOTUS will allow it. I won't attempt my own prediction on the merits, but I think he's probably right that, despite our baroque standing rules, this case will follow roughly the same procedural path as the Travel Ban litigation. There will be twists and turns, but before too long it will reach the Supreme Court.