“Sue the Bastards” Could End Shutdown Standoff; Involving Courts and legal standing is a Dubious Tactic With Uncertain Results
WASHINGTON, D.C. (January 10, 2019) – “Sue the Bastards” – as a shorthand for resolving disputes in the courts – could quickly end the current government shutdown by turning important decisions over to federal judges, but the result would involve a constitutionally dubious procedure with uncertain results and an equally uncertain time line, suggests public interest law professor John Banzhaf.
If President Trump follows through on his treat to declare a national emergency in order to obtain the funds he says he needs for a border wall, he could then gracefully and in a face-saving way back down from his continuing refusal to end the shutdown, claiming that he has taken the step necessary to build his wall.
Indeed, several Republican senators are urging him to declare such an emergency, although some appear to be doubtful that this would provide him with the funds he needs. But, from their perspective, it would seem to offer them a graceful way out of what is clearly a major political mess.
At this point it would appear that the issue of funding a border wall would largely shift from the two political branches to the courts since, if not successfully blocked and challenged by judges, Trump would succeed to some extent, thereby assuaging his supporters but also angering his political foes who don't want him to have the wall.
But if his opponents then engaged in the legal challenges which many of the leaders have promised, they also could tell their supporters that they have done everything they could to stop the President, but that they would have to abide by whatever the courts decide.
The ball is then in the courts' court.
While many claim that any such emergency declaration would be unconstitutional, many legal scholars - including Prof. Banzhaf and his law school colleague Jonathan Turley - doubt that premise, in part because a current statute authorizes the president to declare emergencies, dozens of such emergencies have been declared by various presidents without a successful challenge, and with some still in effect, and several statutes even spell out the powers that a president would have if he declared an emergency.
That's why Banzhaf is doubtful that a court would attempt to enjoin a declaration of emergency, even if the "emergency" and the motivation for the declaration seem dubious.
Another is the well known doctrine of abstention, under which courts decline to rule on what they consider to be a dispute between the two other branches better resolved through the political process.
This is especially true here because the very statute which authorizes the president to declare an emergency also gives Congress a weapon to end it if they believe that it was wrongly proclaimed. The two houses need only pass a joint resolution.
Since the statute provides a specific technique for dealing with this very problem, courts might be reluctant to get in the middle, and short circuit the very process the statute provides, suggests Banzhaf.
Another problem which has largely gone unaddressed by those urging lawsuits if an emergency is declared is who or what entity might have the legal standing to initiate such a court challenge.
Citizens or even individual legislators do not have legal standing to challenge government actions, since standing requires an injury in fact.
A House Appropriations Committee spokesperson called Trump's threat "legally dubious," saying it would "invite a legal challenge from Congress."
But courts have often held that individual members of Congress, or even congressional Committees, lack the particularized injury necessary to obtain legal standing.
However, in the recent Azar case, federal judge Rosemary M. Collyer held that the entire House of Representatives did have standing to pursue constitutional claims regarding President Barack Obama's implementation of Obamacare.
However, she also held that the House did not have standing to challenge "the implementation of a statute, not adherence to any specific constitutional requirement."
So, if Trump relies on statutes purportedly authorizing him to declare an emergency and to divert funds for the wall, the House might not have standing to challenge him.
This issue is vital, argues Banzhaf, since it appears that no other entity may have standing to challenge a spending decision if it is based upon existing statutory authority, although a person whose land is seized - "under the military version" of eminent domain, as Trump put it - may have standing to raise at least certain (but not necessarily all) legal issues related to the President's order.
Also, a state in which a major military project had been planned, but then cancelled to fund the wall, might try to argue that it has the requisite legal standing because it would suffer some injury in fact. But other standing requirements related to what administrative lawyers call "causation" and/or "redressability" could complicate any such claims.
In any event, the legal claims which might be raised in such a state law suit might be limited.
In short, says Banzhaf, while a declaration of emergency might give both sides political cover to open the government while simultaneously claiming that they did everything they could to achieve their contrary objectives with regard to the wall, the results and the timing would be very hard for anyone to predict.
What the courts would be willing and able to do could depend upon whether Trump relies on his alleged constitutional authority or upon statutes, which statutes he claims to rely upon, exactly where in the budget he will seek to divert the funds and where and how he plans to spend them, and how quickly individual cases can move from the district courts to the circuit courts, and then up to the Supreme Court.
Banzhaf notes that something much simpler - Trump's various immigration orders - had to be reformulated, and were considered by close to a dozen different judges on many different courts before eventually the Supreme Court resolved the issue.
Even given this uncertainty over the results, and how long it might take to resolve these complex legal issues, Trump might wish to chance it, believing that the Supreme Court will vindicate him.
If not, it could give him another campaign issue for a possible 2020 reelection bid.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
http://banzhaf.net/ jbanzhaf3ATgmail.com @profbanzhaf