So what now? What is going to happen with President Donald Trump’s declaration of an emergency as the basis to repurpose funds to the construction of a border wall?
Everything now depends exclusively upon Trump’s legal team playing their cards right. Trump has powerful legal arguments to use, but success will now depend upon the relative skills, experience and intelligence of the teams of lawyers supporting Trump’s policies versus the armies of anti-American lawyers trying to tear down our country. We should be deeply worried.
Trump had a slam-dunk case for declaring an emergency to fund a border wall. However, by poorly handling the action and roll-out and then by signing the contested budget deal filled with outrageous limitations, Trump’s legal team may have destroyed the un-losable legal case Trump had. I speak as an attorney experienced in constitutional and public-policy law, including working for Judicial Watch and later for Larry Klayman at Freedom Watch, who has researched this in detail.
Trump failed to first get the governor of Texas to request a state of emergency. Trump’s decision to declare an emergency would be unassailable in court if supported by a request from Texas. Gov. Greg Abbott when attorney general wrote many letters to then-President Barack Obama demanding action. These already qualify as a request for declaration of an emergency but for missing just the key word “emergency.”
Texas still needs to a) declare a state emergency; b) request a national emergency declaration; and c) provide a comprehensive list of all of the violence, crime, civil disturbance at the international border.
The Texas Legislature needs to pass a resolution certifying that there is an emergency and requesting the federal government’s help.
Trump’s legal team and the entire conservative movement sea to shining sea have failed to invoke Article IV, Section 4, of the U.S. Constitution, which requires the federal government to defend the states against invasion and domestic disturbance. Trump’s decision cannot be questioned when mandated by the U.S. Constitution.
This writer has been banging the Article-IV-Section-4 drum to deaf conservatives since March 2013. Those efforts then for “American Border Control” were reported at WND on March 23, 2013. Yet, Trump’s legal team is still not using a constitutional command to support Trump’s actions?
Lawsuits cannot stop Trump’s border wall. The failure of his attorneys to properly represent Trump’s agenda can.
The National Emergency Act of 1976, codified at 50U.S.C.§ 1601–1651, gives Congress the power to terminate an emergency. However, this means that lawsuits must fail. (Some judges may not realize this, but they should.) It is “either / or” – not both. You cannot both go to court and go to Congress.
Where the statute provides a remedy, that remedy is exclusive. The National Emergency Act delegates the power to question a national emergency exclusively to Congress. The courts are prohibited from considering any lawsuits against Trump’s declaration.
In Baker v. Carr, 369 U.S. 186 (1962), the U.S. Supreme Court summarized when courts will not consider a “political question”:
“Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”
Over the weekend, three landowners in Texas along the international border and an environmental group, Frontera Audubon Society, filed a lawsuit in the U.S. District Court for the District of Columbia. The case was filed by Public Citizen and designated Case No. 1:19-cv-00404.
None of them have standing, especially not the landowners. Their case should be dismissed for lack of standing. The D.C. Circuit has staked out a very strong position on standing, such as when dismissing Sheriff Joe Arpaio’s lawsuit filed by Larry Klayman with my back-up legal work against President Barack Obama’s amnesty by executive action extending DACA.
The landowners have a monetary claim for compensation under eminent domain. They do not have standing to challenge the wall or the emergency. That’s because the government can take their land to defend the international border regardless of whether it builds a wall or merely wants access to the border. Under Kelo v. City of New London, Connecticut, 545 U.S. 469 (2005), lawsuits cannot stop eminent domain. The government can take the land in the morning and start building in the afternoon. But they do have to pay for the land.
But note: As I have been banging the drum to focus on Texas only, which is in the 5th Circuit, the lawsuit was not in the 9th Circuit. Most everyone clutching their worry beads to their chest has feared the 9th Circuit. Texas isn’t in the 9th Circuit. It’s in the 5th Circuit, one of the most conservative circuits among the federal courts.
So Public Citizen filed the lawsuit in the District of Columbia, not in California, New Mexico, or Arizona. Trump’s legal team must concentrate all activity exclusively in Texas.
Every lawyer in the White House and Department of Justice needs to tattoo a phrase on the back of their hands to remind them as they type:
That means that any lawsuit filed in the 9th Circuit must be moved on a change of venue to Washington, D.C. That’s where the actions were taken. That’s were the decision-makers are. That’s where the witnesses are. That’s where the evidence and documents are.
Leftists are barking up the wrong tree. They want to challenge whether the unprotected border is an “emergency.” However, that is exclusively committed to the president under the statute.
Furthermore, their arguments won’t fly. The landowners’ lawsuit claims that an emergency must be “sudden and unexpected.” That is not true. Hurricanes are a certainty. The only unknown is when and where a hurricane is going to cause devastation. There will be a hurricane causing damage to the U.S.A. That reality is neither sudden or unexpected. We know there will be forest fires. We know there will be tornadoes. These devastating events are routine. The problems at the border are more of an emergency than those.
UPDATE: (Feb. 20, 12:30 p.m. Eastern) The urgency is that a motion for a change of venue must be the first action taken in a lawsuit or it is waived. If Trump’s lawyers do not immediately challenge venue in San Francisco, they will have lost the opportunity forever. Now that 16 states have also sued the Trump administration in the U.S. District Court for the Northern District of California, in San Francisco, it is all the more urgent that White House lawyers and the U.S. Department of Justice discover a change of venue under “forum non conveniens.” Federal lawyers are second to none on challenging standing. But they studiously ignore questions of venue. Federal law allows that venue is possible in San Francisco, but the case can still be moved under “forum non conveniens.” And the Trump administration should immediately appeal any failure to move the case to the U.S. District Court for the District of Columbia. With the latest lawsuit by 16 states, all of the actions took place in Washington, D.C., all of the decision-makers are in D.C., most or all of the witnesses are in D.C., most or all of the documents at issue are in D.C., etc. The states include Virginia, Maryland, New York, New Jersey, Maine, Delaware, and Connecticut. Seven of the 16 states are nearby Washington, D.C., most on the Acela AMTRAK corridor. Three are Midwestern states as near to D.C. as to San Francisco. So only six of the 16 plaintiff states are in the 9th Circuit. The D.C. Circuit is not exactly conservative. But it is demonstrably more predictable and grounded in law.