President Trump Shouldn’t Fear Legal Battles If He Declares Border Security A National Emergency (Part II)
NOTE: This article is continued from a first installment focusing on the the general prospects of using the military to build a border wall. READ HERE.
If President Donald Trump uses the U.S. military to build the border wall along the United States’ international with Mexico by declaring a national emergency, won’t liberals simply run to a Federal judge whom they believe to be left-wing within the Ninth Circuit and block Trump? Can Congress vote to overturn Trump’s declaration of an emergency?
No. If the federal courts actually follow the law, President Trump cannot be prevented from “reprogramming” funds appropriated for the U.S. Department of Defense and actually using the military (such as the U.S. Army Corps of Engineers) to build the border wall.
As noted in the first installment on this topic, Congress has given a president the power to declare a national emergency by 50 U.S.C. 1621 and 50 U.S.C. 1622. A declaration of an emergency allows the President to reprogram funds in the military budget. See 33 U.S. Code § 2293 “Reprogramming during national emergencies.”
Trump could reprogram funds from other parts of the Department of Defense budget — including from other DoD construction projects such as on bases, military housing, etc. — and engage in construction in areas of need for the national defense. The statute says that explicitly (although statutes are never easy reading).
But Democrats are threatening and commentators are warning that such an action would be challenged in court and in Congress immediately. Can such a plan be blocked?
First, 50 U.S.C. §1622 allows the Congress to over-turn a president’s declaration of an emergency. If both the Senate and the House each pass s resolution terminating the President’s declaration of an emergency, than the emergency status terminates under 50 U.S.C. §1622. But clearly the Republican-controlled U.S. Senate would not join the Democrat-controlled U.S. House of Representatives. Unless a significant number of Republican Senators vote against a border wall built by the U.S. Army Corps of Engineers or contractors with military funds, Congress could not block Trump’s efforts.
(Note, although I argue in the next section that this power has been invalidated by the U.S. Supreme Court, if a court disagrees on that, a legislative veto power should block a lawsuit. Where Congress has provided a specific method for challenging a declaration of an emergency, the federal courts would normally hold that that method becomes the exclusive remedy. A lawsuit would be blocked by the fact that Congress provided a non-litigation remedy.)
Second, however, the Congressional veto process described above has been ruled unconstitutional by the U.S. Supreme Court, in INS v. Chadha, 462 U.S. 919 (1983), finding a legislative veto of Executive Branch action unconstitutional. Congress passed many laws which specifically enabled Congress to veto regulations or actions under that law. The U.S. Supreme Court found a legislative veto violates the structure or architecture of the Constitutional system.
Laws go to the President for signature or veto. Congress cannot reach over and pull a law back. Congress must pass a new law and present it to the President for signature if dissatisfied with how the law is working out. The U.S. Supreme Court had no hesitation finding that the Congress had over-reached, based only on the implied architecture of the Constitution.
In Chadha, 50 U.S.C. 1622 was one of the laws explicitly discussed. The dissenting opinion specifically warned that the Chadha decision invalidated Congress’s ability to overturn a presidential declaration of a national emergency.
Therefore, Congress cannot overturn a declaration by President Trump that the open border is a national emergency. Even if the U.S. Senate were to side with the Democrats, Chadha explicitly ruled the Congressional veto (termination) of a presidential declaration to be an unconstitutional distortion of the familiar “Schoolhouse Rock” means by which laws are passed and signed by presidents. Once a law is signed, there is no “claw back” right by Congress.
Third, of course, critics are discussing whether Trump’s actions would be constitutional. Here, however, Congress passed a specific statute, in fact a series of statutes. So there is no question about the President’s power to do what the Congressional statute has explicitly empowered him to do.
Some even point to a rather famous Constitutional landmark case — Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) — in which the U.S. Supreme Court explicitly ruled that President Dwight D. Eisenhower did not have the power to temporarily nationalize the U.S. steel industry to avert a strike for national defense. However, Youngstown was not that simple. Youngstown analyzed the inherent powers of Commander in Chief as modified by Congressional agreement by statute.
The U.S. Supreme Court explicitly analyzed that the President’s powers are at their greatest (zenith) when he acts not only by his inherent powers as President but also by the agreement of a statute passed by Congress. In Youngstown, Eisenhower did not have any statute supporting his action and the Court reasoned that he was actually acting in conflict with relevant statutes.
Here, the Congress has already enacted and President George W. Bush signed into law, the Secure Fence Act of 2006. It is already the law of the land that a border wall shall be built along the United States’ Southern border. Neither Congress nor any private plaintiff can challenge the official determination that a border wall or barrier shall built. That is the law. That is the official determination of both the U.S. Congress and the Commander in Chief.
The Secure Fence Act of 2006 was never implemented (other than a few miles) because Congress did not appropriate the funds to pay for it. There are two steps: Authorization and Appropriation of funds. The decision to build a border wall is final. The only question is applying funds to make it happen.
Building of a border wall under the 2006 Act was also not completed because the Swamp and Deep State sabotaged it. Using classic bureaucratic games, the bureaucracy and open borders legislators followed “designed to fail” steps that ground the construction to a halt.
Note that in spite of the word “fence” in the title, the law does not actually mandate a “fence” in particular. The wording of the Act is not about a “fence” but about any kind of barrier customized to the particular terrain in each location to the extent necessary to “the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband.” That is “all.” As in “all.”
So the Secure Fence Act of 2006 requires building “whatever it takes” — not a “fence” per se. The Act does require specific enhanced barriers and lights, cameras, and sensors, in some named locations.
Fourth, could liberals run to the courts to block Trump from using the military to build a border wall? No. Only those with “standing” can bring a lawsuit. How is anyone harmed?
The federal courts have been waging Jihad against citizens bringing lawsuits for decades. The federal courts have been raising the bar higher and higher to make it nearly impossible for anyone to challenge the actions of government agencies or public officials. Specifically a complaint that is shared generally by much of the population cannot establish standing.
Contrary to strongly-held popular belief, the U.S. Supreme Court has clearly ruled that taxpayers do not have standing to challenge government spending, revenue, or action merely because they are taxpayers. See, Daimlerchrysler Corp. v. Cuno, 126 S.Ct. 1854, 164 L.Ed.2d 589, 547 U.S. 332 (2006). So the Left cannot block Trump’s plans by suing as taxpayers. (The only exceptions involve use of funds to establish a religion or local government taxpayers.)
To bring a lawsuit, one must show that they are tangibly harmed, personally, not just in disagreement with a policy. If Trump uses some of the $700 billion in the omnibus bill to build a border wall, everyone will be more safe. How is anyone harmed?
Fifth, can private landowners, some of whom will be liberals, go to court and stop the use of private land as an easement taken by eminent domain? No.
There is absolutely no defense available to taking land by eminent domain. How much compensation is owed for taking an easement as a strip of land could take years to fight out in court. But the actual right to use the land cannot be contested. The government can take an easement immediately and then fight later over how much money should be paid to the landowner. Remember that this was the legal holding of the over-the-top, controversial U.S. Supreme Court precedent Kelo v. City of New London, Connecticut, 545 U.S. 469, 125 S. Ct. 2655; 162 L. Ed. 2d 439 (2005). (Kelo ruled that it is not even necessary to show a “public purpose” for eminent domain, which goes too far.)
Legal challenges will not stop construction, even it takes years to reach agreement on the compensation payable to landowners. To finance payment of compensation, Trump should consider offering a land swap of federally-owned tracts of land or selling such public lands.
Sixth, opponents of Trump’s agenda will try to find individual landowners along the border, who might be liberal, to object in general to the reprogramming of military funds to build the border wall. But those landowners should not be considered to have standing, for several reasons:
(A) It would be speculation as to whether the government will take any action at their particular section of the border. How would a landowner know that his or her part of the border is a stretch where the planners believe an actual wall is truly needed, as opposed to other natural or physical barriers? It would be — under standard doctrines of standing — insufficient to speculate that that particular landowner’s land is going to be affected at all.
(B) There is a concept called “exhaustion of administrative remedies.” If an individual landowner doesn’t want a border fence along their particular stretch of the border, they would first have to tell the government that they object. The courts would traditionally wait until the government can try to find agreement with the landowner before allowing a lawsuit. A lawsuit would be invalid as not yet being “ripe.” Traditionally the courts would require a plaintiff to actually talk to the government agency first to see if their stretch of land is actually going to be affected or not, whether a compromise can be worked out, etc. Those are the currently-existing standard rules that always govern. (In fact, on policy, one could argue if a landowner doesn’t want a wall along their property, fine. Let all the trespassers funnel through that person’s land, trampling the ground, leaving trash everywhere, and frightening their family in their home at all hours. If they don’t want a border wall on their property, fine. Check back with us later and tell us how that worked out for you.)
Seventh, open border advocates of course will also find some would-be gate-crashers from another country to say that they want to break the law and cross the border in the unmanned frontier and the border wall will stop them from breaking the law. That should be laughed out of court, because one does not have a “right” to break the law. Similarly, they will try to find immigrants in the U.S. who want to bring family members into the U.S.A. But they have legal avenues for doing that, by sponsoring their family members to come in legally. Those ideas may impress an individual federal trial judge for a short time, but it should not survive on appeal.
(Note: Trump does need to get changes in the law through Congress or perhaps just issue clarifying regulations from DHS that a foreigner can apply for asylum at a U.S. consulate without entering the United States.)
As an attorney in Virginia for 21 years, who has worked for both Judicial Watch and more recently Freedom Watch created by Larry Klayman, I often have to explain the concept of “standing” to clients who want to bring “good government” lawsuits or hold the government accountable to its rules.
When Sheriff Joe Arpaio sued to challenge Barack Obama’s amnesty by executive order, the U.S. Court of Appeals for the District of Columbia ruled that Arpaio did not have standing, even though illegal immigration cost him actual money in (then) running the jails of Maricopa County. I worked on that legal case, from helping write the original complaint (with an eye toward establishing standing from word one) to legal memoranda in the U.S. District Court for the District of Columbia, filed by Larry Klayman, to the appeal by Larry Klayman to the U.S. Court of Appeals for the District of Columbia. Arpaio’s legal pleadings established standing as strong as one could imagine, an iron lock on showing standing.
Didn’t matter. The courts completely contradicted other precedents, as powerfully demonstrated by the dissenting opinion of the Honorable Janice Rogers Brown, an African-American appeals judge with more intellect and intellectual integrity in her little finger than the U.S. Congress combined.
In deadly seriousness and a straight face, I honestly have to explain the law of standing in federal courts as follows: If you want to encourage the expansion of government and government intervention in the economy or society or prevent the streamlining of government, you have standing. If you want to hold government accountable to staying within its rules or you want to block left-wing policies, you don’t have standing. it’s pretty much that simple. Are you a liberal? You have standing. Are you a conservative? You don’t have standing. Having studied hundreds of precedents on standing, I must say that with absolutely no humor, exaggeration or hyperbole. I could not truthfully say anything different.
However, the federal courts have established some very strong precedents ruling that almost no one has standing to challenge anything that the government wants to do — unless the government action directly harms the plaintiff personally and individually.
Therefore, it will be extremely awkward for the federal courts to ignore and contradict their past precedents and claim that anyone has standing to object to the building of a border wall by the U.S military.
Finally, President Trump’s Administration under incoming Attorney General William Barr has got to stop this foolishness with lawsuits brought before a cherry-picked judge in the Ninth Circuit whom the plaintiffs believe will be unusually sympathetic to them and hostile to Trump’s policies.
The Department of Justice under Bill Barr must always file a motion for a change of venue to the U.S. District Court for the District of Columbia. Readers will be familiar with changes of venue requests in famous criminal cases. But this is different. This is not about whether a criminal defendant can get a fair trial due to pre-trial publicity.
A change of venue in a civil dispute is based upon other considerations: Where are all the witnesses? Where are the records and evidence kept? Where was the decision made? Where are the decision-makers to be affected by the lawsuit located? Those venue rules strongly if not conclusively favor moving any such lawsuit to the District of Columbia, where the decisions were made, where the officials and witnesses reside, and where all the evidence is located.
Again, those are the standard, currently-existing, non-controversial rules. None of these lawsuits should be tolerated out in the Ninth Circuit on the Left Coast. There is no valid reason to have such lawsuits spread around the country instead of being held in Washington, D.C., where the action is — and where the action took place.