The real ‘national emergency’ may be a politicized U.S. Supreme Court (Updated)

As was expected from the first time the idea was first floated, 16 States Sue to Stop Trump’s Use of Emergency Powers to Build Border Wall:

A coalition of 16 states, including California and New York, on Monday challenged President Trump in court over his plan to use emergency powers to spend billions of dollars on his border wall.

The suit, filed in Federal District Court in San Francisco, argues that the president does not have the power to divert funds for constructing a wall along the Mexican border because it is Congress that controls spending.

[Read the full lawsuit in California et al. v. Trump et al. here.]

The lawsuit is part of a constitutional confrontation that Mr. Trump set off on Friday when he declared that he would spend billions of dollars more on border barriers than Congress had granted him. The clash raises questions over congressional control of spending, the scope of emergency powers granted to the president, and how far the courts are willing to go to settle such a dispute.

Longtime Supreme Court reporter for NPR, Nina Tottenberg, frames the issue correctly, Trump’s National Emergency Sets Up Legal Fight Over Spending Authority;

Here’s the central question: Is it constitutional for the president to ignore Congress’ decision not to give him all the money he wants for a Southern border wall — and, instead, get it through a declaration of a national emergency?

This separation of powers framing is not necessarily how the federal courts will frame the issue, however (see Harry Litman below).

Trump clearly anticipates a court fight and is looking to the new hard-line conservative Supreme Court majority for help. As he put it, in a sing-song voice in the White House Rose Garden on Friday:

“I’ll sign the final papers as soon as I get into the Oval Office, and we will have a national emergency. We will then be sued and they will sue us in the 9^th Circuit, even though it shouldn’t be there. We will possibly get a bad ruling, we’ll get another bad ruling, and we’ll end up in the Supreme Court, and hopefully we’ll get a fair shake and we’ll win in the Supreme Court. Just like they did on the ban, and we lost and we went to the Supreme Court and we won.”

Longtime Supreme Court reporter Dahlia Lithwick warns at Slate, Trump Isn’t Just Defying the Constitution. He’s Undermining SCOTUS.

The integrity and authority of the judicial branch is eroded every single time Donald Trump puts an unfit jurist on the bench. It’s further eroded when he announces that an entire federal circuit is corrupt and biased. But when he stands and promises that he has the current Supreme Court in his pocket, so nothing really matters, that might be the greatest threat to the legitimacy of the judiciary, period. And if that high court ultimately stands by and rubber-stamps his fake data and tawdry impresario “invasion” porn, the real national emergency will be at the court, not the border.

Former U.S. attorney and constitutional law professor Harry Litman speculates How the Supreme Court might rule if Trump declares an emergency for his wall:

[T]he courts will take up the issue fully understanding that Trump’s claims of an emergency rest on lies. There is, in fact, no emergency. There are only desperate would-be immigrants who pose virtually no threat to the national security of the county.

What makes the decision such high political drama is that Trump has decent legal arguments on his side — not always the case with this administration. Here is the basic legal landscape:

In 1952, the Supreme Court reviewed President Harry S. Truman’s emergency takeover of the nation’s steel mills to put an end to a strike that Truman argued threatened ongoing steel production during the Korean War. In Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) the court held that neither the Constitution nor Congress had provided him the authority to close the mills.

In a canonical concurring opinion in that case, Justice Robert H. Jackson set out a governing framework for assertions of emergency power. He found that the question turned on whether Congress had (1) authorized the assertion of power (in which case presidential authority is at “high ebb”), (2) taken no action (the authority falls in a “zone of twilight”), or (3) opposed it (presidential power at “low ebb”).

That opinion remains the leading precedent on a president’s declaration of emergency powers. It suggests that if the court finds that Congress has authorized emergency powers that cover the building of Trump’s wall, he will prevail. But if it finds that Congress has rejected it, he will lose.

Fast-forward to 1976, when Congress, looking to curb promiscuous assertions of presidential emergency powers, passed the National Emergencies Act, which requires presidents to specify which powers they intend to use. It further holds that a declared state of emergency sunsets unless the president renews it annually.

In practice, however, the law has proved a boon to presidential power. It appears to give the president unfettered discretion to announce an emergency, and presidents have routinely renewed these annually. More important, Congress has never attempted to exercise its powers to end an emergency. The upshot is that about 30 states of emergency remain in effect today, each of which provides access to dozens of statutory provisions.

Can Trump add one more, by fiat? Probably. Certainly, any other president would have broad running room under the National Emergencies Act to do just that.

* * *

The pivotal legal question is likely to be whether the courts defer to Trump’s determination as president or whether they review it independently. Will the question be framed as “is there an emergency?” or “Did the president plausibly conclude that there is an emergency?”?

Notice that this is not the separation of powers framing that Nina Tottenberg proffered above. it is a national security deference framing. (If Youngstown Steel is applied properly, Trump would still lose, in particular if Congress passes a resolution objecting to Trump’s emergency declaration. A self-serving veto by Trump to seize power the Constitution expressly assigns to the Congress would only strengthen the position of Congress under the Youngstown Steel framework).

On the all-important question of deference, there is an elephant in the room that the courts no doubt see. Trump is an inveterate liar, and his assertion of an emergency is grounded in a flurry of shifting falsehoods: Illegal border crossings are down, not up. Terrorists are not coming in to the country at the southern border. Former presidents do not support building the wall.

In fact, the New York Times has reported that the whole idea of the wall came from Trump advisers Roger Stone and Sam Nunberg as a way to try to keep their erratic candidate on message about immigration generally. It’s hard to imagine a less credible genesis for a state of national emergency.

This gives a court skeptical of Trump’s probity two bites at the apple. It could hold either that there is no emergency — Trump’s claims notwithstanding — or that the specific powers that Trump is attempting to harness to build the wall cannot be stretched to that purpose. It would then enter an injunction suspending the efforts to build the wall while the issue works its way through the courts, a process that would be expedited but that still would require a few months at least.

And yet. The court — and especially this Supreme Court — will surely also be sensitive to the potential consequences of calling the president a liar, as deserved and obvious as it may be here. That is because it could commit the court to a regime of second-guessing presidential declarations, hamstringing genuinely necessary emergency powers [in the future]. Might the justices let him proceed so as not to clip the wings, in a genuine emergency, of the other, more honest presidents to come?

Trump’s hope has to be that the court judges not him but his office.

As Dahlia Lithwick points out in her analysis, the Roberts Court did exactly this with Trump’s Muslim travel ban:

The Emergencies Act, however, is broad and vague. Noah Feldman says declaring an emergency when none exists is clearly unconstitutional. Elizabeth Goitein argues that the courts may give Trump the green light under the broad statutory authority of the National Emergencies Act. Conservative David French says the declaration is illegal. The truth is, of course, that what legal experts and academics think is much less relevant than what actual judges will do. And the president was absolutely clear in his announcement that he has that part in the bag.

* * *

Last summer, when the Supreme Court was considering the Muslim travel ban, five justices looked past Trump’s campaign statements and the tweets and the winking comments and found that the president had the legal authority to enact it. In dissent, Justice Sonia Sotomayor was furious at this willful blindness: “Rather than defend the President’s problematic state­ments, the Government urges this Court to set them aside and defer to the President on issues related to immigra­tion and national security. The majority accepts that invitation and incorrectly applies a watered-down legal standard in an effort to short circuit plaintiffs’ Establish­ment Clause claim.” Her final sentence in that dissent is today’s chilling reminder of what happens when the Supreme Court rubber-stamps a pretextual power grab by a president who has no respect for the Constitution: “Our Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to ac­count when they defy our most sacred legal commitments. Because the Court’s decision today has failed in that respect, with profound regret, I dissent.”

Donald Trump’s emergency declaration isn’t popular and isn’t necessary and—as he admitted himself this morning—isn’t even an emergency. His one play, his only play, is his confidence that the smash-and-grab appointment of federal judges he has spearheaded will remain popular with Republican senators. His constitutional violation may prove unpopular and even unconstitutional, but it doesn’t matter if his judges will someday bless it. The president just announced—and announced out loud, on television—that he would flout the will of Congress and win at the Supreme Court because the justices there let him do what he wants.

If this is true, any illegal or unconstitutional act of the president or a Congress controlled by his political party could be given the veneer of legitimacy, legality and constitutionality by a high court politicized by rank partisanship and deference to their party leader. Sadly, we have already seen evidence this has occurred.

This is how democracies die and give rise to authoritarian regimes.

UPDATE: Law Professor Aziz Huq reiterates the point made by Dahlia Lithwick, Has the Supreme Court Already Decided the Wall Case?

[T]here is another recent case that tracks, issue-for-issue and beat-for-beat, the filed and impending litigation challenges to the wall—and Trump won it. … If the legal challenges to the wall anticipated in Trump’s Friday Rose Garden speech arrived quicker, it simply shows that all concerned have settled comfortably into a predictable dance of provocation and resistance. The travel ban litigation ended in a 5-4 decision in the U.S. Supreme Court, upholding the policy mere months before Americans returned to the polls in 2018.

That earlier case is the challenge to Trump’s Muslim travel ban.

The parallels between the Muslim travel ban and the wall cases are too precise and too plural to be ignored. Even if you think the court’s endorsement of the travel ban wrong—as I have argued—it would be a grave error to ignore its predictive quality.

* * *

If the policy’s challengers point to the president’s own statements on Friday, or his own past conduct in the context of budget negotiations to show that there is no border emergency, or that the real motive at work is to fulfill a campaign promise with 2020 in mind, the court would then remind them, again quoting the travel ban decision, that it is not “the statements of a particular president,” but rather “the authority of the presidency itself” that is at issue. In effect, the court here said that it would refuse to take Trump at his word, and instead ignore evidence of either flawed motive or insufficient justifications. English law had a Latin maxim that nicely captures the court’s thought here: “rex non potest peccare,” or the king can do no wrong.

Under this doctrine, the fact that the president’s aim of circumventing Congress’s control of appropriations is arguably unconstitutional matters no more than the president’s expressions of animus mattered in the travel ban case.

In this manner, the Supreme Court’s opinion from last year can be applied point for point to the statutory and constitutional arguments against the wall emergency proclamation. The expected result is that the president prevails. The Kavanaugh confirmation only makes this more likely given the new justice’s record of voting in favor of expansive presidential powers.