Standing

As might have been expected the editors of the New York Times are unhappy about President Trump’s designation of the situation at our southern border as an emergency, the better to make good on his campaign promise of building a wall without authorization or appropriations from the Congress:

In reality, the wall is not a done deal, and Mr. Trump has spent the past few months — the past two years, really — failing to convince either Congress or Mexico to pay for it. This week’s bipartisan spending bill, which contained no more wall money than the one over which Mr. Trump shut down the government in December, was a particularly humiliating defeat.

Desperate to save face, the president and his team cooked up a nonemergency emergency with the aim of seizing funds already appropriated for other purposes. Currently, the plan is to pull $2.5 billion from the military’s drug interdiction program, $3.6 billion from its construction budget and $600 million from the Treasury Department’s drug forfeiture fund. The White House plans to “backfill” the money it is taking from the Pentagon in future budgets.

The lawsuits challenging the president’s decision are already flooding the courts:

Even as he spun this as an act of strong leadership, Mr. Trump acknowledged that his declaration resolves nothing and creates a host of legal, legislative and political troubles. He predicted that the move would prompt swift legal pushback, which it did. Less than four hours after the announcement, a government watchdog group filed suit, demanding that the Department of Justice hand over “documents concerning the legal authority of the president to invoke emergency powers.” Soon after, the State of California announced its intention to sue. On Thursday, even before the announcement, Protect Democracy and the Niskanen Center announced plans to file on behalf of El Paso County and the Border Network for Human Rights. So the floodgates are open.

What drives me to the point of screaming are the bitter laments about abrogation of the rule of law. A bit late with that warning, chief.

Let’s consider the rule of law aspects of this issue a bit starting with national emergencies and ending with legal standing. There are presently thirty some-odd national emergencies presently declared in the United States and, presumably, still in progress, the oldest declared by Jimmy Carter and the most recent two declared by Donald Trump.

Of his own power the president does not have the authority to declare a national emergency and that authority cannot reasonably be inferred from the president’s constitutional authority. That authority was granted to the president by the National Emergency Act of 1977. I’ve read it. It is absurdly broad. It can be construed to give the president the authority to declare a national emergency any time he or she cares to for any reasons he or may see fit and do practically anything he or she cares to.

Here’s the rub. The Congress does not itself have the authority to enact such a law let alone delegate such powers to the president. You will search the Constitution in vain for that power among the Congress’s enumerated powers and it cannot reasonably be inferred from any of those actual powers. Depending on their state constitutions, the legislatures of the states may have the legal authority to allow their governors to declare state-level emergencies but that’s irrelevant to the issue of national emergencies.

The common law is pretty clear on this issue, too. “Emergency powers” cannot be construed in as broad a manner as the National Emergency Act does.

There are several clear remedies available. The Congress can repeal the National Emergency Act which would be my preference. If a case brought by an individual with proper legal standing were to make it through the courts, in theory the Supreme Court could declare the National Emergency Act unconstitutional which would be a fine outcome as well. If they were to reject the Congress’s ability to delegate its constitutional authority to the executive, that would be good, too. The likelihood of their of those outcomes is practically nonexistent.

To have legal standing one of three conditions must be met:

1. The party must be directly adversely affected.
2. If not directly adversely affected, the case must have some relation to the party’s situation.
3. The law must give the party automatic standing.

I do not believe any of those conditions applies to any of the organizations that have filed suit to date. Indeed, it’s difficult for me to see what organization or individual would have standing. That is not to say that some court some where might not see legal standing for some one some how. But this post is about the rule of law not about the court’s ability to torture the law into arriving at a desired outcome. That’s not remotely the rule of law.

So, Congress, do your danged job. Repeal the National Emergency Act and start doing your own danged job. If anything less happens, let’s not whine about abrogation of the rule of law, shall we? What we’re seeing is the juridification of differences of opinion on policy.

Update

The editors of the Washington Post are no happier:

The emergency for Mr. Trump is purely political, impelled by expectations inflated by his campaign promises to build a border wall and force Mexico to pay. Having conflated a political crisis with a national one, Mr. Trump chooses to dodge, dissemble and lie. A self-respecting Congress would not let stand this manufactured emergency.

which approaches my position.

Shame on you, Congress. You created this debacle. Now fix it.

The editors of the Wall Street Journal point out that two wrongs don’t make a right:

Democrats cheered on Barack Obama’s legal abuses on immigration and so much more, and now many Republicans are cheering President Trump’s declaration of a border emergency to build his wall. Constitutional conservatives should be wary of both.

President Obama unilaterally expanded the rules for asylum and immigration, an abuse of authority. I thought the Congress should have acted to remedy that as well.