Overlooked Issues Could Derail Emergency Declaration Suits

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Overlooked Issues Could Derail Emergency Declaration Suits; But Bad Law Could Be Made If Trump’s Lawyers Fail to Raise Them

WASHINGTON, D.C.  (February 21, 2019) –  Although most of the legal analysis of the law suits challenging President Donald Trump’s declaration of a national emergency have focused on constitutional issues and/or on issues related to the several statutes, including the National Emergencies Act [NEA, 50 U.S.C. §§1601-1651] on which he will be relying, there are important legal issues related to legal process, or administrative law, which could derail – or at least delay – these challenges, argues public interest law professor John Banzhaf.

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These legal issues include ripeness, legal standing, the political question doctrine, issues of unique remedy, and the Overton Park test, among others, says Banzhaf, who has taught Administrative Law for more than forty years, and has been involved in several high profile cases involving some of these issues.

Under the doctrine called "ripeness," courts will often refuse to consider law suits brought prematurely, before the facts have become settled, especially if the actions involve constitutional issues.

Indeed, it is almost a matter of faith among judges that any decision involving constitutionality should be based upon a clear and established set of facts, and not upon speculation or mere probabilities.

This important rule is designed to prevent courts from issuing unnecessarily broad decisions; decisions which could be regarded as no more than forbidden advisory opinions as to what might (or might not) happen in the future.

This seems to be very clearly the situation here, since the location and even type of fences have yet to be determined, much less announced, so it is hard to base a decision on their possible impact, whether environmental, economic, or otherwise, suggests Banzhaf.

It's also unclear exactly which statutes Trump will rely upon, much less exactly how much money will come from which source, which projects planned and/or already underway will be affected, etc. Statutes which have been mentioned include the Military Construction Codification Act [MCCA, 10 U.S.C. §§ 2801-2885], 33 U.S.C. § 2293, 10 U.S.C. § 2803, and 10 U.S.C. § 284.

All of this uncertainty and lack of precision may cause courts apply the doctrine of ripeness and refuse to adjudicate important issues, including constitutional issues, in the abstract and arguably prematurely, and instead decide to entertain such issues only once the important underlying facts have become clear (i.e., the issues have ripened).

In other words, court have often refused to review broad pronouncements of policy, and have demanded that something concrete and specific happen, or be about to happen, before they will rule, even if there might be strong reasons favoring a prompt judicial ruling on important issues.

This, explains Banzhaf, is the difference between attacks on a statute or executive determination "on its face" (as it might be applied in many different situations) which often fail, and waiting for subsequent developments so that it can be challenged "as applied" in specific situations.   In legal terms, this means that a court might refuse to rule until this case has ripened.

The uncertainty regarding specifics is likely to also affect the issue of legal standing: i.e., what individuals or entities have the legal authority to sue to block the emergency declaration.

The Supreme Court has held that, to meet this difficult constitutional threshold, a challenger must demonstrate an "injury in fact" ("an invasion of a legally protected interest") which is "concrete and particularized," and also "actual or imminent, not conjectural or hypothetical."

At this point it's hard to see how any potential challenger can show that his land will be taken for construction of the wall, which animal's habitat will be adversely affected, or even which states will be hurt economically by the cancellation of various projects, suggests Banzhaf, who helped bring and win a leading Supreme Court case on environmental standing.

Moreover, as has often been pointed out by administrative law scholars, courts have not infrequently erected new legal barriers, and/or employed new and difficult tests, to find that standing did not exist in specific cases where they were reluctant to rule on other legal grounds.

Thus, unless and until challengers can find plaintiffs who can meet these difficult requirements of demonstrating a concrete and particularized legal injury which is not simply conjectural or hypothetical, suits could be dismissed at this time for lack of legal standing.

Another major issue is whether the decision to declare an emergency is even reviewable.

Under 5 U.S. Code § 701, some decisions are completely "committed to agency discretion by law" and therefore unreviewable.

To determine whether a decision is reviewable, courts often use what has become known as the Overton Park test, which asks whether there is "law to apply."  If there is no law for the court to apply in making its analysis, the decision is deemed unreviewable.

In other words, unless the relevant statute supplies "law to apply," a legal standard which the court can use as a measure, it cannot and will not substitute its own judgment for that of the decision maker.

Here, under the NEA, the Congress specifically authorized any president - in addition to any authority he may independently possess under the Constitution - to declare national emergencies.

Although many such "emergencies" had been declared before the act was passed, often in situations which most people probably would not regard as a true "emergency," Congress deliberately chose not to impose any conditions or limitations on this statutory power.  Thus, under the Overton Park test, there may be no law to apply, and therefore no basis on which a court can review the declaration.

To be more specific, if Congress had incorporated in this statute some specific standards or limitations - e.g., an "emergency" must be sudden and unexpected, not previously voted on by Congress, etc. - a judge could apply this law (standard) in evaluating the legality of any declaration of an emergency.

But if the statute contains no standard, there is arguably no law for the court to apply in judging the specific declaration. Moreover, because of this deliberate choice by Congress, a court may decide that the legislators intended that such declarations should not be reviewed by judges.

Another concern arising from the same statute is that it does spell out a specific remedy if a president abuses the power; Congress can completely undo the declaration by passing a joint resolution.

Since there is a clear remedy provided by the statute for misuse by a president of this power, a court may well conclude that it was meant to be the exclusive remedy; in other words, that it did not intend that a judge would be able to review - and arguably second guess - a decision by a president to declare an emergency.

Similar considerations would also come into play in determining whether courts should refuse to review certain issues under the "political question doctrine."

Under this principle, where Congress has provided itself with a specific remedy, it can be argued that the issue is one which should be resolved by Congress through this resolution power and not by judicial intervention, especially since Congress chose not to provide any standards (i.e., law to apply) for a court to utilize in determining the legality of the President's determination.

Put another way, courts which see issues which it regards are primarily political and not legal may decline to step in and resolve disputes between branches which are political in nature.

In short, says Banzhaf, there are many defenses, especially at this time, to court review of Trump's declaration of a national emergency, and related decisions to reallocate funds to build a wall.

While a court might consider these defenses on its own initiative (sua sponte), it is more likely to do so if Trump's lawyers raise them, and present strong arguments to support them.

If, however, Trump is so eager to obtain a definitive judicial resolution on the merits as quickly as possible and does not raise them, these procedural defenses might be glossed over, thereby adversely impacting the resulting rulings, and possible establishing confusing if not harmful legal precedents for future cases, Banzhaf concludes.


Professor of Public Interest Law

George Washington University Law School,

FAMRI Dr. William Cahan Distinguished Professor,

Fellow, World Technology Network,

Founder, Action on Smoking and Health (ASH),

2000 H Street, NW, Wash, DC 20052, USA

(202) 994-7229 // (703) 527-8418

http://banzhaf.net/ jbanzhaf3ATgmail.com  @profbanzhaf

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