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Dismiss the Wall Complaint - non-justiciable issue
Feb 27, 2019 | Street Lawyer

Posted on 02/27/2019 8:54:17 AM PST by street_lawyer

Issues: 1. Is there a Case or Controversy? 2. Is the matter a political issue?

CASE OR CONTROVERSY: The Constitution limits the jurisdiction of the Federal Courts to nine classes of “cases or controversies”. Over the years the Supreme Court has exercised its authority by adding further restrictions. Before accepting a case, the court must first determine if the parties have standing. Then it must decide if the timing is right, i.e. “ripe for adjudication”, which is to say that someone has suffered an injury, or withholding a legal determination is likely to result in substantial hardship on the plaintiff. The complaint in California et als. Vs. Donald J. Trump seeks to establish the right of a State to contest the power of the President to exercise his constitutional and statutory authority by declaring a national emergency, if that power results in injuries to the States.

If the Administration were to use the funding sources identified in the Executive Actions, Plaintiff States collectively stand to lose millions in federal funding that their national guard units receive for domestic drug interdiction and counter-drug activities, and millions of dollars received on an annual basis for law enforcement programs from the Treasury Forfeiture Fund, harming the public safety of Plaintiff States.

Assuming for the sake of argument that the President has invaded limited funds that would be available to the States for interdiction and counter-drug activities, and without those funds the states would not be able to carry out their police powers. Even if the funds have been allocated and the President intends to use those funds for the wall, the President has the statutory authority to do so. He also has the discretion to decide which programs he deems less worthy than the Wall. The Courts will not second guess the President. Furthermore, I would argue that the States are not claiming any injury to date and the complaint should be dismissed as untimely. Argue that the States do not allege a sufficient connection (nexus) to some theoretical injury and the President’s decision to use certain funds. Simply put, the courts do not adjudicate hypothetical claims.

THE POLITICAL QUESTION The political question doctrine was involved in the matter of Oetjen v. Central Leather, Co. (1918). The Court held that the President had the sole responsibility in the area of foreign relations. The Court held that the way the President uses that power presents a political question. More recently in Baker v. Carr (1962) the Court more clearly defined the rule by holding that courts should not adjudicate cases that deal directly with issues that the Constitution grants sole responsibility to the President. In the Wall case Congress has given the President a textually demonstrable power to resolve national emergencies. There are no “judicially discoverable and manageable standards” to apply by which a court is able to determine if the action taken by the President has violated those standards. Simply put, the President has unfettered discretion to declare a national emergency and is authorized to execute laws which will allow him to address the emergency. Furthermore, Congress has enacted a stop gap measure by which it can vote to end the national emergency. Since Congress has provided a procedure by which it can resolve the conflict, the courts should not intervene, especially if that procedure fails to end the emergency. If the Courts were to intervene under these circumstances and end the emergency it would in essence be overriding the procedure designed by Congress to deal with the issue.

The history of the rule excepting political issues from the court’s Article III jurisdiction is complicated. Suffice it to say that the political question presents an opportunity for judges to exercise their biases. The rule is one of exercising “prudence”, a kind of “don’t rock the boat” rule. In 2014 the Roberts Court decided Lexmark International, Inc. v. Static Control Components Inc. The prudence doctrine was dismissed as an illegitimate hinderance to Article III powers. Justice Scalia also held the same belief. Our courts are now more likely to entirely discard the political question doctrine. But arguably not in the case of the Wall.

Even if the courts no longer constrain themselves in the name of prudence, the courts do still adhere to the distinction between substance and procedure. Deciding based upon the substance of a statute is one thing but deciding by what procedure the statute was enacted or executed still presents a political question. The courts must defer to procedure designed by Congress to resolve disputes as between the Article I and Article II branches of government.

Furthermore, in addition to overriding procedure. Congress cannot bring an issue of executive discretion within the cognizance of the courts any more than the courts can assume authority to overrule that discretion. In the Wall case the Court would have to encroach on executive powers granted to it by the Constitution and by statute. If the court were to decide either that no emergency exists, or decide what measures are appropriate for addressing the emergency, these decisions would still, even for the Roberts Court, present a political question beyond the limit of the Court’s rightful jurisdiction.


TOPICS:
KEYWORDS: thewall; trump
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1 posted on 02/27/2019 8:54:17 AM PST by street_lawyer
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To: street_lawyer

Thanks very much for this.


2 posted on 02/27/2019 8:59:55 AM PST by tomkat
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To: street_lawyer
If the Courts were to intervene under these circumstances and end the emergency it would in essence be overriding the procedure designed by Congress to deal with the issue.

Bingo.

3 posted on 02/27/2019 9:00:53 AM PST by Jeff Chandler (We are in the midst of a Cold Civil War.)
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To: Jeff Chandler

“Plaintiff States collectively stand to lose millions in federal funding that their national guard units receive for domestic drug interdiction and counter-drug activities, and millions of dollars received on an annual basis for law enforcement programs from the Treasury Forfeiture Fund, harming the public safety of Plaintiff States.”

I believe their argument is moot. The wall
is being built to address and support
the stated concerns. I’m curious to know
if any of the states objecting have
placed national guard troops on the
border.


4 posted on 02/27/2019 9:35:46 AM PST by Lean-Right (Eat More Moose)
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To: street_lawyer

Throw all reason and objective truth out the window.

5 justices can do what they want to do.

7-2 decided we could kill babies.
5-4 decided we had to buy a product from a private company or have our money taken by force.
5-4 decided our property wasn’t really our property.


5 posted on 02/27/2019 9:38:27 AM PST by Macoozie (Handcuffs and Orange Jumpsuits)
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To: tomkat

The question in my mind is whether the border situation is an “emergency”.

Without trying to define “emergency”, we have a problem that will become totally out of control if we let it grow.

The damage would be as catastrophic as a military invasion would be.

It is extremely important (an emergency) that we take control of the border immediately.


6 posted on 02/27/2019 9:42:51 AM PST by cymbeline
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To: street_lawyer

Last I checked the military reports to the Commander-In-Chief alone. There is no court in the chain of command. Trump needs to double down on this with direct orders to build without ceasing, despite any court orders.


7 posted on 02/27/2019 10:08:50 AM PST by SENTINEL (Kneel down to God. Stand up to tyrants. STICK TO YOUR GUNS !)
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To: cymbeline

Is cancer an emergency? Well lack of border control is exactly like a cancer going untreated. It can only get worse.


8 posted on 02/27/2019 10:33:52 AM PST by Robert DeLong
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To: Robert DeLong

“lack of border control is exactly like a cancer going untreated”

Exactly.

Didn’t the Trump administration declare our illegal drug problem an emergency or words to that effect? The border situation is part of that ‘emergency’.


9 posted on 02/27/2019 12:42:20 PM PST by cymbeline
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To: Macoozie

Throw all reason and objective truth out the window.

5 justices can do what they want to do.

7-2 decided we could kill babies.
5-4 decided we had to buy a product from a private company or have our money taken by force.
5-4 decided our property wasn’t really our property.

While what you say may be true, it’s no reason to stop wearing a MEGA hat


10 posted on 02/27/2019 1:56:12 PM PST by street_lawyer
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To: Lean-Right

“Plaintiff States collectively stand to lose millions in federal funding that their national guard units receive for domestic drug interdiction and counter-drug activities, and millions of dollars received on an annual basis for law enforcement programs from the Treasury Forfeiture Fund, harming the public safety of Plaintiff States.”

I believe their argument is moot. The wall
is being built to address and support
the stated concerns.

BRILLIENT REASONING! You get an A+


11 posted on 02/27/2019 1:58:01 PM PST by street_lawyer
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To: street_lawyer

“Plaintiff States collectively stand to lose millions in federal funding that their national guard units receive for domestic drug interdiction and counter-drug activities, and millions of dollars received on an annual basis for law enforcement programs from the Treasury Forfeiture Fund, harming the public safety of Plaintiff States.”

I believe their argument is moot. The wall
is being built to address and support
the stated concerns.

BRILLIENT REASONING! You get an A+
it’s also Brilliant as well lol


12 posted on 02/27/2019 1:59:18 PM PST by street_lawyer
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To: street_lawyer; Macoozie; Lean-Right

The Constitution famously set up checks between the branches.

Thanks to the 17th Amendment, Congress doesn’t have the will to use their available checks against a runaway judiciary.

The practical fact is, Scotus is despotic. There is no Constitutional limit to its diktats.

Start with repeal of the 17A. Article V.


13 posted on 02/27/2019 4:07:46 PM PST by Jacquerie (ArticleVBlog.com)
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To: cymbeline

Trumps declaration on drugs (thru the
dept of health) is a separate declaration.
It’s already funded from the war on drugs.

https://www.whitehouse.gov/opioids/


14 posted on 02/27/2019 10:25:28 PM PST by Lean-Right (Eat More Moose)
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To: street_lawyer

There’s one other point to make.
Trump has already declared a national
emergency on the opioid epidemic.
https://www.whitehouse.gov/opioids/
For the rats to claim that moving money
from the military defense budgets creates
a hardship on the enforcement of drug
interdiction, it is not true. The money
is there for the opioid emergency declaration.
I believe it’s funded thru the dept of health.


15 posted on 02/27/2019 10:38:12 PM PST by Lean-Right (Eat More Moose)
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To: street_lawyer

That’s OK...I’ve known a few brillient
people who couldn’t spell worth a hoot.
I’ve seen Los Alamos scientists with
taped up eye glasses, staring at beer
bottles.


16 posted on 02/27/2019 11:03:18 PM PST by Lean-Right (Eat More Moose)
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To: street_lawyer
The courts must defer to procedure designed by Congress to resolve disputes as between the Article I and Article II branches of government.

The question here is what happens if the procedure designed by Congress leads to a conclusion unfavorable to Democrats? We all know what happens next: Democrats run to the courts to overturn the results of that procedure.

Results that are unfavorable to Democrats are, by definition, illegitimate and must be corrected by any means necessary.

-PJ

17 posted on 02/28/2019 12:07:34 AM PST by Political Junkie Too (The 1st Amendment gives the People the right to a free press, not CNN the right to the 1st question.)
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To: Lean-Right

“It’s already funded from the war on drugs”

You said it: “The war on drugs”. My point is that our drug problem is already being called a war. Our border problem with drugs is therefore a war. Certainly a war is an emergency.


18 posted on 02/28/2019 4:30:14 AM PST by cymbeline
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To: Political Junkie Too

Since as you say the courts are so corrupt that whatever the democrats want they get, then what do you suggest that conservatives do about it?


19 posted on 02/28/2019 6:57:30 AM PST by street_lawyer
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To: Macoozie

Since the courts can only control the outcome if the states that are enacted are not specific the solution is always the same. The Constitution provides for governance that represents citizens. Apparently we have the kind of governance we have because this is what people want. Who’s mainly responsible for molding public opinion?


20 posted on 02/28/2019 7:02:21 AM PST by street_lawyer
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