The U.S. Supreme Court has just OKed the use of $2.5 billion in Pentagon funds for President Trump to use to build a wall across our southern border, setting aside a stay issued by the 9th Circuit.
The ground briefly stated in the order was that the government “made a sufficient showing at this stage” that the groups did not have proper standing – “plaintiffs have no cause of action to obtain review” – to challenge transfer of money.
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This is exactly the result publicly predicted by public interest law professor John Banzhaf when Trump first announced his plans. Here’s what he wrote then.
President Donald Trump’s repeated threats to get money to build a wall by declaring a national emergency, although derided by many who also threaten legal action, just might succeed, especially since it’s not clear that anyone would have legal standing to challenge it in court or that they would win against the President, suggests public interest law professor John Banzhaf, an expert on obtaining standing. . . .
Moreover, while there might be no obvious plaintiffs with legal standing to challenge his proposal – as there were in the Youngstown case, where the steel companies had obviously suffered the necessary injury in fact to obtain legal standing – a recent federal court decision may provide the answer.
In the Azar case, federal judge Rosemary M. Collyer held that the House of Representatives did have standing to pursue constitutional claims regarding President Barack Obama’s implementation of Obamacare.
So, at least under that precedent, it would seem that the Democratically controlled House could authorize a suit to challenge Trump, at least on constitutional grounds.
The same Azar decision which held that the House of Representatives had legal standing to pursue constitutional claims against Obama also held that the House did not have standing to challenge “the implementation of a statute, not adherence to any specific constitutional requirement.”
In summary, suggest Banzhaf, who both teaches and litigates issues of standing, the law related to standing by legislative bodies is far from clear, and whether beginning to build a wall following a declaration of emergency could be challenged in court in this manner is uncertain, and could well depend on whether the issues are constitutional or statutory, exactly how the issues are framed, and how a judge interprets the scarce legal precedents, says Banzhaf.
This issue is vital, argues Banzhaf, since it appears that no other entity may have standing to challenge a spending decision 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.