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.


Joe said...

Justice White's dissent in Chadha has some bite, perhaps. I wonder if a legislative veto is one of those wish list amendments that is a good idea. OTOH, yes, Congress here could and should have narrowed the law are noted in the column.

I like the bit of background noise in the audio too.

egarber said...

A couple of general things:

1. It seems to me that once again, Trump has personally telegraphed the weakness of his position. Just as he told us the reason he fired Comey - to end the Russia investigation - here he admits publicly that there's no "emergency."

"I could do the wall over a longer period of time. I didn't need to do this. But I'd rather do it much faster."

How can something be a "national emergency" if it wasn't really necessary??!?!?!

2. On the '76 statute itself, people on the right and in the media don't seem to be accurately depicting what the law actually requires. I'm of course no expert, but doesn't the '76 law require a semi-compelling connection to an existing statute before action is taken - i.e., the president has to ground his plan in additional and specific statutory authority** (beyond that which allows him to put up the "emergency" umbrella)? That's why the smart people are asking questions like, "is the army building a wall really something that supports the military, as the invoked statute X requires?"

There has been a lot of lazy reporting that ignores that requirement, so it comes across like the president can literally do whatever he wants by just declaring an emergency. As ill-conceived as the '76 law is, it's not THAT bad , is it?

** which begs the question in my mind: if the president has to find - and if he has - authority elsewhere, what's the point of the emergency declaration in the first place? Again, I'm no expert, but it just seems like the whole provision is a jacked up mess.

David Ziff said...

Question regarding ripeness (and perhaps standing): Does any of this depend on whether we have a theory of severability for Trump's executive order? He's broken the construction process into three stages. But we know that he views the project as a whole because he announced it as a whole. And it's clear he wants one big wall over a particular distance. If he wanted to just build some (congressionally appropriated) part first, he could have done that first. Then he could have asked for more money next year. Or he could have dipped into 284 next year. Etc.

Anyway, if for some reason the order/project is not severable, why would a plaintiff need to wait for the money to start flowing from 2808 or even 284 before filing suit? The project itself is unlawful because it draws on these improper funds. The plans for the project, disclosed by the President in his fact sheet, clearly rely on those improper funds. So the project is improper as a whole.

To make a bad analogy, if my neighborhood is zoned for two-story houses, but my neighbor starts building a three-story house that blocks my view, I shouldn't have to wait for him to start building the third story before suing. If he's about to break ground and the blueprints show a three-story project, that should be enough to get me in court for an injunction, right? Similar idea here with the wall.

Michael C. Dorf said...

Great comments and questions. Briefly:

Eric: Yes, there must be some other statutory authority, but the NEA is not redundant. Absent an invocation, the $ would need to be spent for its allocated purposes.

David: A student asked me that very question today in Federal Courts class. (I begin each class with a segment called "Fed Courts in the News." Today's was about standing. Natch.) Anyway, I don't know of any case that directly answers your question. There's at least a prima facie plausible answer that distinguishes your 3-story house hypo. There we know for certain that your neighbor intends to build all 3 stories. In the Fact Sheet, the administration says the "funding sources will be used sequentially and as needed." Depending on what "as needed" means, it's possible the administration would never get to the emergency funds (either because Congress allocates more money directly, or Trump is out of office before the first two sources are exhausted, or Mexico pays for the Wall after all!)

egarber said...

<<Yes, there must be some other statutory authority, but the NEA is not redundant. Absent an invocation, the $ would need to be spent for its allocated purposes.

Ah, thanks for that. So generally speaking, some statute specifies how money is to be spent, absent an emergency declaration. But upon invoking the NEA, the president can redirect at his discretion, provided the given statute allows that purpose in its broader contours? Meaning, even there, the discretion is effectively limited, at least on paper.

Something like that?

Shag from Brookline said...

Once Trump leaves office, does the emergency he declared end? (Of course the real but undeclared national emergency was that Trump was in office.)

This whole brouhaha suggests that Trump could declare a ham sandwich [or especially a Big Mac?] a national emergency.

David Ricardo said...

Since all or almost if not all of the national emergencies that previous Presidents have declared are still in effect it would seem this one would survive Trump leaving office.

But to go to Mr. Dorf's subject of the post, isn't the initial issue whether or not a preliminary injunction can be issued while deciding the issues not only of standing but of the legal basis of the declaration itself. If the preliminary injunction can be issued that would halt everything for a long period of time (wasn't Youngtown technically about an injunction?). So even arguing the standing issue would devolve into an issue on the 'emergency', that is, if a Court finds that there is no emergency wouldn't it then issue an injunction until the legal issues of the case are decided? That alone would be a temporary victory for the opponents of Trump.

As for the legal issues other than standing I would strongly urge everyone read the opinions in Youngstown of Justices Black and Jackson. Unless that decision is over-ruled it is hard to see how the Trumpian position can hold.

David Ricardo said...

Also, with respect to standing is the following possible, feasible or likely?

The Court says

1. The Emergency Dec is an attempt by the Eecutive Branch to obtain by decree that which they cannot obtain by legislation and hence is not allowed


2. the Congress has a remedy, namely the over-riding of a veto by the executive of a joint resolution ending the emergency

which (assumed for the sake of this argument)

3. it was unable to do and therefore the Congress is asking this Court to allow the Congress to obtain by decress something they were unable to do as legislation and

4. therefore they have no standing. If the Congress wants to end the emergenchy, it has the meanss to do so but was unable to do so.

5. Therefor the Court punts.

Shag from Brookline said...

Trump's declared national emergency aims at significant activity over some significant period of time involving a fairly large swarth of construction. Regarding declared national emergencies by previous presidents that remain in effect, what significant activities are involved comparable to Trump's construction? If, say, very little construction is achieved over the next two years perhaps because of litigation delays and Trump is not reelected, might Trump's national emergency cease? I understand many of the previous declared national emergencies involve the seizing of terrorists' assets that remain frozen (despite global warming).

Mark Regan said...

The most notorious case in which the U.S. House claimed and received standing to make Appropriations Clause claims was House v. Burwell, the Obamacare cost-sharing-reductions-payments case. Standing ruling: 130 F.Supp.3d 53 (D. D.C. 2015). Merits ruling: 185 F.Supp.3d 165 (D. D.C. 2016). I think the eventual settlement made it difficult for the House to use the House v. Burwell standing ruling as precedent in any other case, but of course the same Appropriations Clause arguments that prevailed there would be available to the House now.

Shag from Brookline said...

The NYTimes has this sobering 2/19/19 Op-Ed:

"Why Trump’s Emergency Mess Means Danger for the Courts - The president’s move has already been challenged in court. Win or lose, he is almost certainly forcing an alarming judicial precedent." By Robert Chesney

The author addresses what he calls clear standing to challenge Trump's declaration on the part of Texas property owners who would be impacted.