The president’s move has already been challenged in court. Win or lose, he is almost certainly forcing an alarming judicial precedent.
By Robert Chesney-Mr. Chesney is a law professor at the University of Texas at Austin.
The New York Times
It didn’t take long for a group of Texas landowners to challenge President Trump’s declaration of a national emergency in court.
More suits have followed — 16 states, including New York and California, have sued to stop Mr. Trump’s use of emergency powers to build a border wall — and the president himself predicted that the matter would “end up in the Supreme Court.” Whether the president wins or loses, though, there is a serious risk that the final result will be a dangerous judicial precedent.
The Texans and others who face the loss of land because of eminent domain actions funded via Mr. Trump’s emergency declaration have standing to sue and good cause to do so. Not because the government may offer them too little money to constitute just compensation, though past practice suggests this will be an issue, too. Rather, they object to the process that the president has used to gain the funding after Congress largely denied it to him.
As an initial matter, they argue that there is no real “emergency” here as required by the National Emergencies Act. Second, and more significant, they contend that even if there is an emergency, it is not one that “requires the use of the armed forces” — which is the critical condition in the budget statute that the president unlocked by issuing his emergency declaration. In other words, if there’s no military necessity, then there’s no emergency authority to redirect military construction dollars toward a border wall.
Even if there is military necessity, moreover, those dollars can’t be spent on just anything. The statute defines military construction precisely and narrowly. You can pay to build things on military property, yes, but not on other government (let alone private) property. And you can pay to buy land, but only in order to make that land military property (not other government property).
As Texans and other landowners argue that these conditions are not met, they have plenty of ammunition from the president’s own lips — including from his news conference last week, during which he emphasized that he did not “need” to take this step but simply wanted to for the sake of speed.
As a result of all this, we are on the verge of intense litigation over a subtle but critical point: Can judges second-guess a president’s determination that there is an “emergency” under the National Emergencies Act? Even if not, can they at least second-guess the determination that the situation “requires the use of the armed forces” as required by the budget statute?
This is where the risk of a problematic precedent arises. It could take either of two opposite forms. On one hand, the courts may give too much deference to the executive branch, taking a valuable tradition and distending it to cover disingenuous claims by the president — encouraging more of the same, and worse, in the future. On the other hand, the courts also might err in the opposite direction, throwing the baby out with the bath water in the course of second-guessing the president in this extreme instance, resulting in a temptation of courts to second-guess in less-justified circumstances.
The deference tradition has deep roots. Courts have long given special weight to presidential judgments about matters that blend factual and policy judgment concerning national security and military needs. We saw the influence of that principle in the Trump administration’s eventual victory in the travel ban litigation, but the tradition runs far deeper than that.
One danger in the current litigation is that this tradition will be applied in a reckless way. In the worst case, the litigation might produce a Supreme Court holding articulating and entrenching a deference-on-steroids version of this concept. This would have extraordinary spillover effects, gutting the chances of effective litigation checks not just here but in many other settings down the line. The decision would lie about like the proverbial loaded weapon, tempting future presidents to similar (or worse) pretextual claims. Supporters of President Trump would be most unhappy to find a President Beto O’Rourke or Kamala Harris reaping the benefits of it in the coming years.
And then there is the opposite risk, with the pendulum swinging so far away from deference as to gut the doctrine going forward. A ruling against the president need not produce such a result, to be sure. Mr. Trump’s declaration normally would prompt deference, yes, but in his signature way he has offered ample grounds for a court to find unique reasons to rule against him. During his emergency announcement, after all, he could not resist admitting: “I could do the wall over a longer period of time. I didn’t need to do this. But I’d rather do it much faster.” There’s more where that came from, and a judge ruling against the president will not need to erode the deference tradition more broadly.
If handled carefully enough, it should be possible for a court to describe this as an exceptionally rare instance in which deference fails — the proverbial exception proving the rule.
But the more alarming aspects of this scenario, and the larger climate of distrust Mr. Trump has brought on himself, could lead to a holding that guts the idea of deference more broadly. This, too, would be dangerous.
The deference tradition exists for good reason. The executive branch as a whole possesses access to information, expertise and experience that are critical for sound policymaking, and to at least some extent our legal system allocates responsibility for military and national security judgments to it. It may be that this is an outlier situation in which the boundaries of wise deference have been met and exceeded, with the president’s candor undoing his own legal case. But a reckless anti-deference decision, sweeping broadly beyond the narrow facts of this unusual case, would lie about like a loaded weapon just as much as an unduly deferential ruling. It’s just that, in this case, its effect would encourage future judges to too-readily abandon normally desirable constraints on their role.
They say bad facts make bad law, and whichever court gets the last word in this instance had best bear that in mind. If in the end there is an anti-deference ruling, let’s hope that it is specific to the unusual facts of this case, with pains taken to protect the general rule. And if in the end the courts instead defer, let’s hope they have some way to reassure us all that this does not open the door to further abuses.
We knew the president was launching down a risky and unpredictable path. It turns out he is taking the courts with him.
Robert Chesney (@bobbychesney) is a law professor at the University of Texas at Austin and a co-founder of Lawfare.
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