[EL] Summary of the legal arguments so far in the lawsuits filed challenging Trump's Emergency declaration

[Schultz, David]

Hi all:

I have read all of the lawsuits thus far challenging Trump's authority to
invoke  national emergency to build a border wall.   This summary  updates
my original Counterpunch essay (
https://www.counterpunch.org/2019/01/17/trump-vs-the-constitution-why-he-cannot-invoke-the-emergencies-act-to-build-a-wall/
) from January 19, 2019.



*Suing the President over the Border Wall: A Summary of the Arguments Thus
Far*

Thus far, at least five law suits have been filed challenging the
president’s authority to invoke national emergency and build border wall.
What are the legal issues that join this battle and what are these lawsuits
arguing to contend the president acting illegally or unconstitutionally?
Let’s review the basics that define the conflict and summarize the main
legal claims being made against the president in these suits.

The US Constitution is a power conferring document.  There are no
extra-constitutional powers.  Before the president or any branch of the
national government does something it needs to trace authority back to the
explicit text of the Constitution or the power must be necessarily
implied.  In the case of the president, his authority comes from Article II
of the Constitution, or he may be delegated some additional authority to
him from Congress via Article I.

Under Article II section 1, executive power is vested in the president.
Under Article II, section 3, the president shall take care that the laws
are faithfully executed.  Through either of these clauses the president can
issue an executive order and declare a national emergency, but what does
that really mean?  Does it mean presidents can ignore existing law or do
whatever they want for whatever reason?  Doubtful.  President’s cannot
manufacture an emergency and then invoke undefined  powers to ignore the
law or the Constitution; this idea violates the very idea of rule of law
and the concept of American constitutionalism.

Presidents do not get the right to decide what is an emergency and do
whatever they want.  The Supreme Court said this in arguably one of the
most important cases of all time, Youngstown v Sawyer, 343 U.S. 579
(1952).  Here President Truman declared an emergency and nationalized the
steel mills during the Korean War to prevent a labor strike that would have
affected production.  If ever there was a crisis, war was it, and the Court
ruled against Truman.  In Youngstown many legal scholars think Justice
Jackson’s concurrence is best statement ever on presidential power.  Acting
with congressional assent presidents have  enhanced power, with
congressional silence they only have the powers given to them by Article
II, and acting against congressional wishes, presidents have diminished
authority.  Truman was acting on his own and lacked the authority to act.
However this third scenario is where Trump is right now when it comes to
the wall and the emergency here is no greater than what Truman faced.

There are two clauses of the Constitution that prevent Trump from doing
what he is doing.  The first is Article I, Section 7, called the
Presentment clause.  This clause says that before a bill becomes a law it
must be passed by both houses of Congress and signed by the president.
Presidents may only spend money for specific purposes if authorized by
law.  Here, no law is authorizing the spending for the law and therefore
the diversion of money previously committed by Congress is
unconstitutional.  The other constitutional clause is Article I, section 9,
which is the Appropriations clause.  This clause says money from the
treasury may only be spent if authorized by Congress.  This clause
reinforces the Presentment clause claim.

Additionally, there are at least two laws that limit Trump’s discretion to
act. The first law is the 1974 National Emergencies Act.  Responding to
abuse by previous presidents, this Act sought to constrain unregulated use
of presidential declarations of national emergencies.  Unfortunately, the
Act does not define what a national emergency is, leaving it up to the
president’s discretion, subject to congressional veto or check on the
declaration.  However, there are three problems with this Act.

First, the original concept of this legislative veto is arguably
unconstitutional  as a result of other Supreme Court decisions such as INS
v. Chadha, 462 U.S. 919 (1983).  Second, it is not clear that Congress can
give the president unbridled or unrestricted discretion to act, especially
to disregard  other congressional statutes or provisions, unless it
specifically says so.  While the Court is reluctant to invoke the
delegation doctrine to limit presidential authority and has not done so
since the New Deal, the wide-open language of the National Emergencies Act
is a perfect place for the Roberts Court to do this.

But third, there is another law that points to why the president cannot
invoke the National Emergencies Act to build the wall.  It is the 1974
Budget Act.  Responding to abuses by Richard Nixon who impounded or refused
to spend money allocated by Congress, the Act placed limits on the ability
of the president to do this.   In Train v. City of New York, 420 U.S. 35
(1975), the Supreme Court upheld the Budget Act saying that once Congress
has allocated money for something the president is not free to disregard
the law and spend or not as he wishes.

The question is, does the authority grant to the president under the
National Emergencies Act supersede the Budget Act?  There is no indication
that the latter was meant to free the president to disregard spending
priorities mandated by Congress.  If there were, Congress would have said
so in the Act.  But even if such an intent or purpose was implied, it is
doubtful given the purposes of the Budget and National Emergencies Acts
that these statutes could be interpreted to be expanding as opposed to
contracting presidential authority.  But, as noted above, if Congress did
intend this,  it is unconstitutional.  Finally, supposedly Trump is looking
at raiding money from hurricane  relief funds.  There is no indication that
in allocating this money Congress intended it to be diverted for other
purposes.  Whatever general intent the Emergencies Act has, it cannot
override specific intent or a mandate to spend as decided by a particular
statute.

There are two addition  problems with Trump invoking the National
Emergencies Act.  First, the Act is not for politically manufactured
emergencies, especially ones created by the president himself.  The
National Emergencies Act is not a tool to bypass the Constitution.   Under
Chevron v. NRDC, 468 U.S. 1227 (1984), courts are supposed to give
deference to reasonable executive agency determinations of ambiguous
statutes.  Conservatives, including Justice  Gorsuch, have increasingly
questioned Chevron deference and there many be a majority either unwilling
to give Trump the benefit of doubt regarding what a national emergency is,
finding his use  or interpretation is unreasonable.

Second,  the longer and more Trump delayed or vacillated in declaring an
emergency the more it showed that the border problem is not an emergency in
any ordinary dictionary meaning of the term.   All of the complaints are
using Trump’s own language against him, as well as statistics arguing there
is no emergency.

Finally, California and New Mexico uniquely are arguing that the border
wall violates the National Environmental Policy Act (NEPA) in that its
construction will impose a significant impact on the environment and
endangered species.  This claim would force the Administration into doing
an environmental impact statement on the wall, arguably delaying
construction for years.  Moreover, there is no indication that invoking the
National Emergencies Act overrides the NEPA.

Future lawsuits will invoke similar claims, but additionally might invoke
the Endangered Species Act or cite to specific statutes where the president
has diverted money from congressionally-authorized programs and therefore
is acting illegally.

Finally, some property owners may challenge the taking of their property
for the border wall as not a valid public use under the Fifth Amendment or
assert they are not getting just compensation.  The former will be a harder
argument to make but both the public use and just compensation claims may
require trials.
-- 
David Schultz, Professor
Hamline University
Department of Political Science
1536 Hewitt Ave
MS B 1805
St. Paul, Minnesota 55104
651.523.2858 (voice)
651.523.3170 (fax)
http://davidschultz.efoliomn.com/
http://works.bepress.com/david_schultz/
http://schultzstake.blogspot.com/
Twitter:  @ProfDSchultz
My latest book:  Presidential Swing States:  Why Only Ten Matter
https://rowman.com/ISBN/9780739195246/Presidential-Swing-States-Why-Only-Ten-Matter
FacultyRow SuperProfessor, 2012, 2013, 2014
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