Will the courts (eventually) back Trump’s proclamation of a national emergency?
On the heels of the President’s proclamation of a national emergency at the southern border, 16 states filed a lawsuit opposing it. Putting aside the politics of the issue, I think the law involved is such that the courts will eventually uphold the proclamation itself, and probably much of what the President wants from it, although there are complications in the details.
The litigants argue that there is no national emergency at the border. I would not expect the courts, however, to involve themselves in second-guessing a Presidential decisions in this instance. Why? In the National Emergencies Act (50 U.S. Code Chapter 34) Congress chose not to provide any guiding criteria, and instead left the determination to Presidential discretion.
No court has ever tried to fetter the President’s discretion in this area even though Trump’s predecessors have readily used their power to declare national emergencies. The Congressional Research Service (CRS) recently (Feb 17) reported that starting with President Jimmy Carter, all Presidents have declared national emergencies – often relating to rather obscure financial matters involving terrorists and other criminals – and many (32) remain in effect. For example, nine of the 13 proclamations President Obama made are still in effect.
One reason no court has ever overturned a declaration of a national emergency may be related to the fact that Congress has the power to do so if it wants.
Indeed, if Congress disagrees with the President, there is a process within National Emergencies Act to overturn a proclamation. While the Act “permits the president to declare a national emergency without congressional approval,” and that does triggers “specific statutory powers that the president can use,” an expert explains that Congress still retains control:
“Congress can vote at any time to terminate a state of emergency and is required by the statute to meet every six months while an emergency is in effect to consider whether it should continue. However, it has never voted on an emergency declared by a president or held meetings as required by the statute.”
This why I believe the contentions in the lawsuit about a violation of separation of powers fall short. In the first place, it was Congress – not the Executive – who determined the President’s power under the National Emergencies Act. That law is designed to use funds for purposes for which they were not originally appropriated. Congress wanted it that way to enable the President to act when the legislative process could not react quickly enough in certain circumstances. And, as noted above, Congress built in a process to negate the President’s action.
In an excellent post, Professor Richard Pildes of NYU Law observes that courts “are traditionally reluctant to second-guess presidential judgments in areas such as foreign affairs, national security and emergencies,” and gives an interesting explanation as to why the National Emergencies Act is now structured the way it is. In my view, it’s quite unlikely that the courts will attempt to create ‘law’ in light of the genuine factual disputes that seem to exist in this case.
Given that the statutory process hasn’t even been attempted, I don’t think the courts will get involved where Congress has not, but could. Thus, a court could find that the issue isn’t “ripe,” one of a number of “justiciability” issues that could apply to this lawsuit. If a court finds a case is inappropriately before them for decision, they can find it non-justiciable and dispose on the grounds of non-justiciability. In other words, the lawsuit could end before there is any litigation on the merits.
Another justiciability issue is the “political question doctrine” which “refers to the idea that an issue is so politically charged that federal courts, which are typically viewed as the apolitical branch of government, should not hear the issue.” My sense is that most people on either side of the issue would find it “politically charged” Consider, for example, that all of the state attorney generals working together on the lawsuit are Democrats. Additionally, a Feb 13th poll shows a sharp divide among voters:
“42% of all Likely U.S. Voters now favor the declaration of a presidential national emergency to begin immediate construction of a wall on the U.S.-Mexico border if Congress fails to fund it. That’s up slightly from 39% a month ago. Unchanged is the 52% who oppose Trump declaring such an emergency”.
Bottom line? I would not be surprised if the courts seized upon the political question doctrine to keep them out of a highly-partisan dispute which is fundamentally political in nature.
Yet another justiciability issue is whether or not there is “standing” by the parties bringing the lawsuit. Among other things, this means that the plaintiffs need to have suffered an “injury in fact” for the courts to redress. American courts, unlike many foreign judiciaries, do not render advisory opinions; they typically only take case where there is actual harm. As the Supreme Court said in Clapper v. Amnesty International:
To establish Article III standing, an injury must be “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.”…[The] “threatened injury must be certainly impending to constitute injury in fact,” and that “[a]llegations of possible future injury” are not sufficient.
Courts are especially reluctant to find standing in cases relating to national security, and that could well be the case here (which may be why so much of the complaint reflects effort to make various claims to establish standing). Courts often consider contentious issues related to national security are better resolved by those branches of government that are elected as they are not.
Does an emergency exist?
But what if courts do get to the merits of the argument as to whether an emergency exists? Legality does not turn on whether or not a particular situation is popularly perceived as a crisis, or even an imminent threat; indeed, most of the existing declarations are prophylactic in nature, that is, aimed at preventing a harm that may arise in the future. I’d wager that few people are even aware of all kinds of emergency proclamations currently in existence,
And legality also does not turn on whether or not Congress has had the opportunity to act. How many Americans, for example, are aware that there is a national emergency “Relating to the Regulation of the Anchorage and Movement of Vessels”? That was declared by then President Clinton in 1996, and is still in effect today. Obviously, Congress has had plenty of time to act if it objected to the law being ‘circumvented’ but the Executive.
Of course, opinions can differ about the situation at the border, but consider a new (Feb 8th) Gallup report (“What If There Were 42 Million at the Border?”) that shows their analytics estimating that of the 120 million people in Latin America and the Caribbean who want to migrate, “42 million want to come to the U.S.”
More importantly, Gallup says that a “full 5 million who are planning to move in the next 12 months say they are moving to the U.S.” (Emphasis added.) Could any nation – the U.S. included – deal with that enormous number of people showing up at its border determined to move across it?
Here are the kind of questions Presidents have to ask themselves as they think through worst-case scenarios as they must: given the prediction, should extraordinary steps be taken now to prepare for such a situation? Could border agents be overwhelmed, even if the estimate proves to be only partially accurate? Are border barriers a necessary part of ensuring a safe and orderly process? Would barriers help deter people from making a dangerous journey? What will happen if as many as five million people try to enter the country illegally in the coming year? How many might succeed, and how would the nation be impacted?
In addition to the Gallup report, there is other evidence relevant to this issue, and it shows that there has recently been a marked upswing at the border of people trying to enter illegally. The Pew Research Center reported in mid-January that there were “467,000 apprehensions at the U.S.-Mexico border in 2018, the most for any calendar year since at least 2012.”
There is key difference, however, from the recent past – and it’s complicating the situation at the border. Pew says that apprehensions of family units increased “substantially” in 2018, “three times as many as in 2017, and the highest number since at least 2012.”
That challenge seems to be growing. On February 10th, the media quoted Brian Hastings, the U.S. Border Patrol Chief of Operations, as saying that “Family units and unaccompanied children from Central America are crossing the border illegally in greater numbers and in larger groups than ever before, straining our law enforcement resources.” In fact, the authorities are reported as saying the “number of families nabbed through the first four months of fiscal year 2019 is up 290 percent compared to the same point in 2018” – “on pace for the worst year since 2007.”
Here’s the problem families and unaccompanied children uniquely present (as reported):
Of the families and unaccompanied children nabbed in 2017, more than 98 percent of them were still in the U.S. as of late last year. Court rulings make it almost impossible to detain them, and once they’re released into communities they are difficult to roust, Homeland Security officials say.
Actually, in recent years around 60% of non-detained illegal immigrants do show up in court, but as Peter Margulies points out, the percentage of no shows (40%) of such a large number “still yields a significant number of no-shows (and) noncitizens unaccounted for.” Finally, consider all the rationales the White House has offered for the emergency declaration (found here).
Even if you believe the litigants present the better argument, courts – who rightly exercise deference to the Executive in national security matters – will very rarely second-guess the Executive where there is any sort of conceivable supporting rationale. While people can argue about the relative weight that ought to be given, it is hard to see how there are not two sides to the issue.
If there is any plausible rationale supporting the declaration (even if subject to sharp dispute, or is not the most popular determination among the citizenry), I would not expect the court to overturn it.
Can walls work?
It does seem a little ironic that one of the most vociferous of the litigants, California, is also the state that already has the strongest border barriers. As Business Insider reports:
California has stood more defiantly than any other state against Trump’s immigration agenda and his long-promised wall. Yet the Golden State’s southern boundary is one of the most thoroughly fortified along the entire US-Mexico border. (Emphasis added.)
A border barrier is certainly not the only action needed to ensure an orderly and fair immigration process, and I agree with those who call for high-tech gadgetry and more border agents as essential elements of a larger package.
However, I disagree with those who think that border barriers are irrelevant.
Anyone who has been to Iraq or Afghanistan would know that while not perfect, it does take barriers and walls to keep out the most dangerous actors, or at least delay them until security personnel can address the situation. (And this may be why a recent poll of current and former service members conducted for The Associated Press shows “high support for the president’s handling of border security.”
There is also plenty of information showing that border fences and barriers helped Israel control immigration, halt the smuggling of contraband, and prevent terrorist attacks.
Of course, Israel is hardly the only country that needed to resort to border barriers. USA Today reported last May that there’s been “an explosion in building border walls since World War II.” It said that now “there are at least 77 walls or fences around the world —many erected after the Sept. 11, 2001, terrorist attacks in New York City and at the Pentagon.” Walls are not impregnable or perfect, but they are a tactic that has an important place in border security.
All of this is to suggest that even though strong disagreement may exist about the President’s plan, it is hard to say that there are no bona fide facts to support it. In that circumstance, I very much doubt that courts – or at least the Supreme Court – will choose to interpose themselves into the debate.
The funding details
The funding details are where the lawsuit might find some traction, simply because the procedures can be complex. The President’s proposed funding comes from, as CNBC explains, “a mix of congressional appropriations and several departments’ pre-existing programs.” Here’s the breakdown:
$1.375 billion from the Homeland Security appropriations bill
$600 million from the Treasury Department’s drug forfeiture fund
$2.5 billion from the Department of Defense’s drug interdiction program
$3.6 billion from the Department of Defense’s military construction account
There is no dispute about the $1.375 billion that the Congress just appropriated with bipartisan support. The $600 million from the Treasury Asset Forfeiture Fund (31 U.S.C. § 9705) does not, as a general proposition, seem too controversial (although the fund itself is controversial for unrelated reasons). According to the ACLU, the “federal government’s forfeiture fund currently has $3.7 billion in cash, [and] over $7.6 billion in assets.” It does not appear that an emergency declaration is necessary to tap these monies, but there could be internal budgetary intricacies involved.
The most complicated source would appear to be monies coming from the Department of Defense (DoD). Fortunately, the Congressional Research Service (CRS) has an excellent new (Feb 6) report, “Using Defense Funds for Construction in a National Emergency” that briefly discusses the relevant statutory sources. Let’s take a look at the law impacting DoD.
In a way, the $2.5 billion from the DoD drug interdiction program also seems relatively unproblematic as the statute concerned (10 U.S.C. § 284) explicitly permits DoD support for the “construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.” Moreover, an emergency declaration is not necessarily required to do so.
However, CRS reports that for FY2019, DoD Appropriations for the program amounted to just $881.5 million. Thus, the more daunting legal issue would be whether or not money can be reprogrammed into it from elsewhere. This is where 33 U.S.C. §2293 comes into play. As CRS points out, the key provision seems to be this one:
(a) Termination or deferment of civil works projects; application of resources to national defense projects In the event of a declaration of war or a declaration by the President of a national emergency in accordance with the National Emergencies Act [50 U.S.C. 1601 et seq.] that requires or may require use of the Armed Forces, the Secretary, without regard to any other provision of law, may (1) terminate or defer the construction, operation, maintenance, or repair of any Department of the Army civil works project that he deems not essential to the national defense, and (2) apply the resources of the Department of the Army’s civil works program, including funds, personnel, and equipment, to construct or assist in the construction, operation, maintenance, and repair of authorized civil works, military construction, and civil defense projects that are essential to the national defense.
What about the $3.6 billion from the military construction account? Reportedly, “$10 billion is available in this fiscal year’s budget, and another roughly $11 billion is available in unobligated funds from the past five years’ military construction budgets.” Again, CRS helpfully provides the relevant provision of law (10 U.S.C. §2808):
(a) In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act (50 U.S.C. 1601 et seq.) that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces. Such projects may be undertaken only within the total amount of funds that have been appropriated for military construction, including funds appropriated for family housing, that have not been obligated.
Obviously, the law requires the acting Secretary of Defense, Patrick Shanahan, to make a number of determinations. The New York Times’ examination of the lawsuit notes how the use of DoD funding can be problematic:
The provision that gives the secretary of defense authority to transfer some Pentagon money into the antidrug account Mr. Trump is then planning to tap, for example, says its authority may be used “in no case where the item for which funds are requested has been denied by the Congress” — raising the question of whether extra funding for border barriers counts as such a forbidden item.
And the emergency-powers statute Mr. Trump plans to use permits military construction spending in an emergency that requires the use of the armed forces for projects “to support such use.” That has been used before to build up foreign military bases in a war effort, but litigants challenge whether a permanent wall to help civilian agencies police the border qualifies under that wording.
Some experts see it differently. Harvard Law School Professor Mark Tushnet told NBC News that his “instinct is to say that if [Trump] declares a national emergency and uses this pot of unappropriated money for the wall, he’s on very solid legal ground.”
Moreover, those with military experience may see it as more than merely helping “civilian agencies police the border.” For example, U.S. Northern Command commander Gen. Terrence J. O’Shaughnessy said rather definitively last October that “border security is national security.”
Additionally, the January 2019 issue of Smithsonian Magazine relates a poll of current and former service members that found that fully 65% support “the use of U.S. military armed services deployed at the U.S.-Mexico border to prevent people from entering the United States illegally.”
In any event, Shanahan seems to recognize the complexities. He said on Feb. 16th, that:
“[V]ery deliberately we have not made any decisions. We’ve identified the steps we would take to make those decisions. This is the important part of that. We laid that out so we could do it quickly. We don’t want to fumble through this process.”
This is wise, since a deliberative approach involving the military and other agencies of government cannot help but to strengthen the administration’s case, if the Secretary ultimately determines that he can support all or part of the funding sought from DoD.
Importantly, Shanahan added: “I just want to make a point of this. We are following the law, using the rules and we’re not bending the rules…”
What about environmental law objections mentioned in the lawsuit? Maybe, but a just-published (Feb 11, 2019) decision by the 9th Circuit about the construction of border barriers will be an obstacle for the litigants. In essence, it ruled that the law gives the administration broad power to waive environmental statutes that, as a news report put it, “cover some of the country’s most iconic protections, including the Endangered Species Act, the Clean Water Act, the Clean Air Act, the Religious Freedom Restoration Act, the Antiquities Act, the Native American Graves Protection and Repatriation Act and the Eagle Protection Act.”
My bet is that at the end of the ‘day’…which actually might be quite distant…the courts will eventually either find the issue of the President’s power to declare an emergency non-justiciable, or uphold it on the merits. True, some lower courts may find for the plaintiffs and issue injunctions, but if the case ever gets to the Supreme Court, I’ve concluded that the law favors the President on this one.
This so not to say that there aren’t philosophical concerns about the way this dispute is playing out – Professor Bobby Chesney has just penned a thoughtful op-ed in the New York Times – but strictly from a legal perspective, I doubt that litigation will ultimately succeed – at least as completely as the plaintiffs hope. I agree with Prof Steve Vladeck, that the “checks here are principally political, not legal.”
Still, as we like to say at Lawfire®