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 $$ actually starts there.
Finally, precisely because Congress has just authorized $1.75b for the wall---regardless of the qualifiers---it cannot be argued that Trump's wall is something different (i.e, somehow unconstitutional). In other words, by passing the bill---and by Trump signing it---Congress just MADE IT 100% LEGAL.
They can say she’s back, but nobody has seen her on the bench. Not even slumped over in her chair which was typical for her.
I predict that a liberal judge on some District Court will declare the Emergency Unconstitutional, even if the judge has no grounds to do so. You know why? Because there is no downside to the judge and only upside. The upside is the judgement will immediately make the news and drive the news cycle and provide wall to wall talking points for liberals. Even if it is eventually overturned, libs will keep yelling about unconstitutional actions by Trump.
So build the parts in judicially awful 9th circuit with early non-challengeable money.
Use the last challenge able money in a favorable judicial circuit.
Absolutely ^^^^^^THIS^^^^^^^!
Most of those musts are better expressed as shoulds. The judges on the 9th will accept whatever promotes their ideological agenda. Standing is relative as well as aggrieved party and ripe won’t affect injunctions.
Trump had to sign. If he vetoed, a court would (reasonably) rule that he did not take all Constitutionally allowed actions to resolve the problem.
Now it’s just a debate over $$, to my knowledge something no court has ever ruled on. It’s always about judicial principles, not dollar amounts.
Moreover, yesterday SpewMore was urging Trump to sign. Rush Limbaugh thought this was actually an attempt to get Rush to veto it. Why?
I think Rush is right: the reason is, I think SpewMore’s lawyers at the last minute figured out the trick and it was too late to stop it in Congress. The WH has some pretty brilliant guys in the counsel’s office.
In WW I, Woodrow Wilson militarized the border against Pancho Villa.
Well, I think Trump will just continue the wall in TX. First, the “funnel” effect is better that way. Herd the illegal points of entry toward the very difficult mountain terrain.
Second, I don’t think Trump wants to give the 9th even a remote chance at stopping the wall all along the border. So he will stay out of CA.
There are still some similar TX landowner lawsuits in court related to those issues from the Secure Fence Act. Last I heard they were not settled. There is recourse for landowners.
In CA, AZ, NM there is an easement called the Roosevelt Reservation that is supposed to be for border enforcement. There is some debate if it only applies to federal land, the way it is written it would seem so. The thing is it was made a reservation before AZ,and NM became states so what that means could be debatable. A rancher on the border said his ranch paperwork shows the Roosevelt Reservation easement even on deeded ground, not sure that is the same with different owners. Our new crazy lib politicians here in NM say they are not going to allow fence/wall to be built on state land so that will have to be dealt with or by pass and keep going.
There are some issues, but most land disputes other than in TX were dealt with for the Secure Fence Act. There are a lot of areas where a fence can be built without issues while other areas play out.
The thing is every piece that can be and is built is a huge deal. Helps Border Patrol to do their job, even remaining unfenced sections are easier for them to deal with than long stretches of miles and miles with no fence. Every bit really does count.
His take is that Roberts is nowhere near as bad as Kennedy was on a whole range of constitutional issues.
Personally, I think Buzzi is in an urn.
Discussions with Zen Master on the judicial strategy behind the Declaration of Emergency.
No. Declaration of Emergency allows him to immediately spend the non-Declaration $.
Second, it alerts the hysterical types in his base that in fact he knows what he’s doing.
Third, correct: with each MILE of wall that goes up, the funnel grows smaller, i.e., the miles you have to patrol. So all the hysteria about not having more border patrol agents is misplaced. You don’t need more if you are building wall. In fact, over time, you need fewer.
Thanks for the encouraging news, LS.
“DoE only affects four states: TX, NM, AZ, and CA.”
The immigration is not just a border state problem. The immigrants go through those states and into the rest of our country.
The border states can’t dictate border issues for their state.
Unless they build a border around their state so immigrants can’t move from their state into the rest of our country.
Excellent analysis.
From your post to Gods’s ears...
Question: If POTUS uses money other than the dollars in this bill, can he then build in the areas restricted by the bill?
In other words, do the restrictions only apply to $ in this bill?
Good news! Any input Beau?
Allendale
So you are smarter than Trump?
Did you teach DJT how to play 4D chess?/s
ping
Bookmark
“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.”
That’s it in a nutshell. Something is very wrong. It’s becoming painfully obvious that PDJT is really not in control of anything.
Bingo.
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