Government

16 States Deliver Issue Spotter To Stop Trump's National Emergency

Trump has zero good legal defenses, but he does have Brett Kavanaugh.

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(Photo by Justin Sullivan/Getty Images)

Reading through California v. Trump, the lawsuit brought by 16 states against Donald Trump over his declaration of national emergency, feels like reading through an issue spotter on a 2L Constitutional Law exam.

That’s not to slam the work here of California Attorney General Xavier Becerra or the other 15 states joining the fight. It’s just to point out that the legal arguments against Trump are so straightforward and obvious that it doesn’t take a lot of high-level lawyering to make them. “Can Donald Trump declare a national emergency to fulfill a campaign promise?” would make a bad final exam question. You can pretty much answer it if all you read was Article I of the U.S. Constitution.

It’s a 57-page lawsuit, but the introduction contains a pretty tight summary about the sheer wrongness of Trump’s actions:

4. Use of those additional federal funds for the construction of a border wall is contrary to Congress’s intent in violation of the U.S. Constitution, including the Presentment Clause and Appropriations Clause. Such use would divert counter-drug programming funds directed to the states, and military construction funds to be spent in the states, for the nonappropriated purpose of constructing a border wall. Even if the Administration could constitutionally redirect funds toward the construction of the border wall, the Administration does not satisfy the criteria in the statutes that it invokes to enable it to do so…

6. There is also no objective basis for President Trump’s Emergency Declaration. By the President’s own admission, an emergency declaration is not necessary. The federal government’s own data prove there is no national emergency at the southern border that warrants construction of a wall. Customs and Border Protection (“CBP”) data show that unlawful entries are near 45-year lows. The State Department recognizes there is a lack of credible evidence that terrorists are using the southern border to enter the United States. Federal data confirm that immigrants are less likely to commit crimes than are native-born Americans. CBP data demonstrate that dangerous drugs are much more likely to be smuggled through, not between, official ports of entry—rendering a border wall ineffectual at preventing their entry into this country.

7. Notwithstanding the illegality of and wholesale lack of necessity for the Emergency Declaration, the Trump Administration has expressed its intent to move quickly with the construction of the border wall. A senior advisor to the White House reportedly said the Administration will proceed with construction at a speed that will “shock” people. The thwarting of congressional intent to fund a vanity project that not only will fail to safeguard national security, but is positioned to cause significant harm to the public safety, public fisc, environment,
and well being of Plaintiff States’ residents, cries out for judicial intervention.

People have been saying this since Trump’s declaration: it violates the separation of powers, it usurps Congress’s appropriations authority, there’s no evidence that there’s a “real” emergency, and the President LITERALLY ADMITS that he’s only doing this out of political expediency.

The states are not making a legally interesting argument — Trump is making the completely dumbass argument that the National Emergencies Act of 1976 supersedes the Constitution based on his say so. This isn’t a close case. This is Trump throwing feces at a laminated copy of the Constitution, versus 16 states solemnly taking out 57 wet-wipes to clean it up.

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The only potential for an intellectually satisfying legal argument is over whether or not the states have standing to sue. They do, but the first 20 pages of the lawsuit are basically each state going through their arguments for standing.

Essentially, Trump’s ridiculous plan to divert money meant for drug enforcement and disaster relief is the “harm” that allows each state to sue. Standing is not going to be a particularly difficult hurdle for states to climb, given that Congress has given them money that Trump now purports to take away in order to fund his wall. It doesn’t matter if the Wall or Barrier or Fence or Human-Centipede-Obstruction is built in the states or not, the MONEY is coming from the states, over the expressed objection of Congress.

The media is desperate to find “interesting” legal issues, so you’ll hear a lot about standing and I’m sure Alan Dershowitz will stop by to say that the President can ENSLAVE #BlackLivesMatter and make them build the wall because the Thirteenth Amendment only applies to private landowners, or something. But the government’s singular argument boils down to this, which the New York Times eventually got to after worrying about standing for a few paragraphs:

Legal specialists expected the Justice Department to urge a court not to consider facts about the border or Mr. Trump’s words, but rather to defer to the president’s decision. The courts have a long history of being reluctant to substitute their own judgment for the president’s about a security threat.

That’s their argument. Don’t listen to the facts. Don’t listen to Trump’s own words. Just agree that the President can do whatever he wants if he clicks his heels and says “national security” three times.

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It’s the weakest possible legal argument for the President to make. It has also 100 percent worked before and might well work again.

There is no reason to think that the Trump National Emergency will survive this lawsuit, based on any reasonable application of the law. There is every reason to believe that conservatives on the Supreme Court will authorize Trump’s actions anyway.

The Republicans did not steal a seat on the Supreme Court for nothing. They did not promote an alleged attempted rapist because he was the only person qualified for the promotion. They’ve put these people on the Court specifically for the purposes of acting as the GOP’s judicial enforcement wing.

I still have hope for… Neil Gorsuch, actually. Roberts and the rest of the conservatives go along with bigotry at nearly every opportunity, and Brett Kavanaugh is a partisan hack. But Gorsuch… that crazy coot actually seems to believe that textualism is a real thing, almost like he didn’t get the memo that this was all some game to make sure wealthy Republican men stay in power forever. The President’s actions are a point-and-click violation of the separation of powers, and Congress explicitly denied funding this construction project. I think Gorsuch might not be a solid rubber stamp here for Trump.

And since I just rested the hopes of democratic self-government on Neil Gorsuch, I’m going to go vomit.

California v. Trump

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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