Posted on 02/16/2019 5:45:24 AM PST by LS
My source on all things courts and legal, Zen Master, has weighed in with some excellent information on the path ahead for the Declaration of Emergency.
1. For a case to be heard, it must meet at least these three conditions: standing, ripeness, and aggrieved party.
First, standing: the DoE only affects four states: TX, NM, AZ, and CA.
Only a party in one of those four can bring a suit in the Ninth (CA/AZ), Tenth (NM), or Fifth (TX) Circuit Courts. But even before you can do that, you must be an aggrieved party, meaning you must show direct immediate harm from what is happening (i.e., building the wall). Watch how this plays out in a moment.
Now, it's frequently argued here that a "friendly" party can bring a case immediately in a "friendly" venue (such as the Fifth, which is mostly GOP/conservative but not unanimous).
No. A court would view this as a type of fraud, since the two parties are considered "friendly" and would rule it an abuse of the court. It would be tossed. I don't know, but there might even be legal penalties for bringing such a suit.
Second, this is different from the Travel Ban, which was national and enabled a Hawaiian judge to put a stay on it. Again, this is region and state specific, meaning it will only affect the Ninth, Tenth, and Fifth---but not until the wall starts going up in those states.
Third, no challenge can be brought until a case is "ripe." In OH, Gov. DeWine said he will sight the "Heartbeat Bill," which PP will challenge. But he hasn't signed it yet, so there is no challenge yet.
No "wall" challenge can be made until the case is ripe, meaning until Trump ACTUALLY SPENDS DoE MONEY TO BUILD SOME OF THE WALL.
2. That brings us to the emergency declaration. Congress has already authorized, and Trump signed (which many of you did not want him to sign) a bill with $1.375b to start building the wall.
Trump has also invoked two statutes, 31 U.S.C. section 9705 and 10 U.S.C. section 284 to spend about $3.1b. These statutes don't require an emergency declaration.
There is a third statute, 10 U.S.C. section 2808 with $3.6b which does require an emergency declaration.
Here's the genius of how Trump is doing this: the money will be spent sequentially, with the $3.6b designated under 10 U.S.C. section 2808 (the national emergency money, if you will) spent last.
Trump will spend about $4.7b before he ever gets to the DoE money---and that's the only point at which that DoE can be challenged.
3. Now, there WILL be a Congressional challenge to the authority to do issue this declaration in DC almost immediately, and that (says Zen Master) will be struck down both on standing and ripeness grounds.
4. Go back to standing: the case cannot come up in the Ninth or Tenth Circuses until wall building WITH DoE $$ actually starts there.
Finally, precisely because Congress has just authorized $1.75b for the wall---regardless of the qualifiers---it cannot be argued that Trump's wall is something different (i.e, somehow unconstitutional). In other words, by passing the bill---and by Trump signing it---Congress just MADE IT 100% LEGAL.
We need about 50 Ted Cruzes and Rand Pauls.
Thanks for the post.
I sincerely hope Zen Master’s streak continues.
Is there no easement on the border?
LS, as you did on election night, 2016, your information offers some truly good news about what is really going on in this current cycle of fever-pitched news.
THANK YOU!!
I would love to have 50 Rand Pauls.
Sure there is. That never stops a suit from being filed. It only means it will be thrown out later.
All the nonsense and delays could be avoided if Trump used his clear constitutional authority and simply ordered the Army Corp of Engineers to build a security barrier /wall along the southern border. In fact it could have been completed by now without Trump signing a bill that impaired Federal law enforcement and enhanced the legal standing of migrants who barge into the country.
Based on this logical presentation, why did President Trump make all this noise about declaring a state of emergency NOW? Why not spend the $1.375B appropriation and $3.1 B before making a DoE, demonstrating the benefits, then declare emergency to fund the remaining part?
Is it:
1) Declaration issue distracts from Trump signing this mega-spending, capitulating to Democrats bill?
2) Once large sections of wall have already been built, the emergency will be greatly diminished (shameless Democrats will likely say it has worked so well, we don’t need any more).
You may want to ping you list
Great informative post. Pardon my ignorance, but who or what is zen master?
“Do you know, or does the Zen guy know what exactly has happened with Justice Roberts?”
Forget Roberts, where is Ginsburg??
DoE wall ping
ping
Zen Master is assuming our Constitution gets properly followed.
I hope Zen Master is right about that.
So build the parts in judicially awful 9th circuit with early non-challengeable money.
Use the last challenge able money in a favorable judicial circuit.
This is why you get those border Demorat towns hooked on that Fed largesse NOW. I mean, pour money in there, go down there like Daddy Warbucks and say, this new road here, this repair here, how about a new reservoir party lake for your boats, all part of TheWall.
Get 'em hooked good and they'll turn on their Demorat masters "Whaddya mean you gota take away Fed money for TheWall? That's our money!"
This has NEVER failed everywhere it's been tried.
Ginsberg is back at work, and just in time for liberals.
Even the applicable birder states have no standing in matters of federal sphere; see AZ failure to enforce federal immigration law. Since this is purely a matter between two separate branches of federal government, SCOTUS could possibly rule the original basis is unconstitutional. But then that itself raises too many conflicting points, primary the reason it was considered necessary in the first place.
Third, in relation to the first point and scope expansion: Trump is essentially militarizing the border. When was the last time this occurred? WWII? Think Viet Nam and GW II - basic authorization in hand, which forms the foundation to justify immediate and massive escalation.
Fourth, border security and the meaning of being a country with national borders and policy oriented towards the citizens' benefit will become the primary political battle for 2020. Trump runs on his current position, whereas his opponent, as well as Congressional races run on ...? Can you imagine the debates? How does one even begin to justify open borders and the displacement of existing citizens for unlimited immigration from the 3rd world in front of a live audience? It only sort of works now with obfuscation - it will never fly under bright light scrutiny.
Which brings us back to SCOTUS - I think it's a natural 9-0 or 8-1 decision if they even pursue the case. Will a national referendum available in 2020 that will resolve the problem through democratic means, the SC would create a constitutional crisis for no good reason. They may be corrupt, but they aren't stupid.
It seems Trump’s side could argue that congress has already approved of the Wall being built as Congress just funded $1.3 billion for building it.
Never underestimate the Dems’ ability to craft perfect sounding bizarre arguments!
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