The New Federalism and the New Federal Judiciary
by Thomas Ascik
The federal lawsuit filed by fifteen blue states (and Michigan) to stop President Trump’s February 15 Proclamation on Declaring a National Emergency Concerning the Southern Border of the United States is unprecedented in American history both for its subject matter, a national “emergency,” and for its attempt to aggrandize federal judicial power to an extent never before conceived.
The thrust of the states’ Complaint is their attempt to prove as a factual matter that there is no such emergency at the southern border, and the states are asking the federal district court to issue a “judicial declaration” to that effect. If the federal court were to accept the standing of states to litigate this issue and if a federal court at any level were to issue a decision about what is or is not a “national emergency,” we are in unprecedented territory in American history.
State Standing to Sue
In California et al v. Trump, fifteen states that voted for Hillary Clinton, plus Michigan, are alleging “injures in fact” to establish their standing to bring the suit. In Massachusetts v. Mellon (1923), the Supreme Court laid down the rule that states may not sue the federal government as “parents” (parens patriae) of their individual state citizens. The same case held that individual taxpayers may not sue the federal government concerning the federal taxes they must pay. The Court held that individual citizens may not invoke the judicial power “in some indefinite way in common with people generally.” Since Mellon, states have been allowed to sue to protect their “sovereign” or “quasi-sovereign” interests, as, for instance, the administration of their state laws and governmental programs.
But this state-sovereignty basis for standing was dramatically expanded in the 5-4 decision of the Supreme Court in Massachusetts v. EPA (2007) in which the Court, without reference to precedent or constitutionalism invented a new basis for standing: a “special solicitude” of the courts towards the states. That case allowed the state of Massachusetts to sue the Environmental Protection Agency about the regulation of what is obviously an interstate concern: greenhouse gases. In Mellon, the Supreme Court had said that it would not rule on “abstract questions of political power, of sovereignty, of government” brought by the states. In his sharp dissent for the four dissenters in EPA, Chief Justice Roberts, citing Mellon, argued that with respect to federal programs, it is “the United States, not the State, that represents” citizens. But since EPA, there have been several state constitutional lawsuits against both Presidents Obama and Trump, wherein states have sought to affect or stop federal policy and practice. The cases against President Trump’s immigration policies and his “travel ban” are the most recent examples.
The “Injuries in Fact”
But the issue of the special constitutional standing of states to sue the federal government is only the first prerequisite for full standing. The standard three-part test for standing in any suit in federal or state court is the allegation that there is an “injury in fact,” a causal connection between the injury and the governmental action, and the likelihood that a judicial decision will cure the problem.
All of them claim that the building of the border wall will harm their economies. Delaware has the most extravagant economic claim. The wall will “negatively impact its gross domestic product, the economic interests, and tax revenues.” Lead state California states that it is suing to “protect the economic health and well-being of its residents.” Illinois and New Jersey are defending their “sovereign, quasi-sovereign, and proprietary interests,” and Hawaii its “defense spending” which is the “the second largest segment of Hawaii’s economy.” Maine is protecting “the health, safety, and well being of its residents,” and New Mexico “the safety and health of all New Mexicans.” Oregon says that the national emergency will “harm Oregon’s environment and could cause flooding and other dangers to the health and safety of Oregonians.” California emphasizes the “environmental harm” it will suffer and the threat to “endangered, threatened, or rare” plants on its southern border.
Such melodramatic and even apocalyptic recitations by the pleading states concerning the “health, safety, and well being” of everybody about everything makes up 25 percent of the 54-page Complaint. By itself, this perceived need of the states to expend such extra effort just to prove that they deserve to be in court makes this a completely unique case. The identity of plaintiffs and their alleged injuries are usually rather obvious and succinct, not voluminous. And as for a normal assessment of standing in this particular case, only the states of California and New Mexico may have real standing because only their actual land would be involved in the construction of the wall. The other fourteen suing states do not have that kind of standing, and the two other border states, Arizona and Texas, are not plaintiffs in the case.
The National Emergencies Act and the National Emergency
The sixteen states barely refer to the statutory basis for the President’s Proclamation, the National Emergencies Act of 1976, (NEA) (50 USC 1621-51). Its mention takes up a total of one page in the Complaint. And the states do not contest that the Act gives Trump the authority to declare a national emergency. The Act has been invoked by every president since President Carter. Not only does it give such authority, the explicit purpose of this extraordinary statute is to establish such authority: Congress has granted presidents the extraordinary power to declare national emergencies. The Congress retains the power to overturn a presidential proclamation of a national emergency by a joint resolution, which can then be vetoed by the president. The Act does not describe any role for the judiciary or the states.
But, more momentous than even the states’ arguments for their unprecedented standing in this historically unique lawsuit are their factual arguments that Trump is objectively wrong that a national emergency exists.
The Complaint states that there is “no evidence,” “no objective basis,” “no factual basis,” and “a lack of credible evidence” for Trump’s Proclamation. This is the true heart of the lawsuit. Both statutory and constitutional lawsuits in federal court are almost always about the legal or constitutional authority to act, not about disputed facts. In such suits, the parties typically agree that there is no dispute on the facts or agree on a proffered statement of facts and then ask the district court to rule on the real issues, that is, the law and the Constitution. Here the suing states are not only alleging Trump is violating federal statutes and the Constitution but also that he is factually wrong about the need for a national emergency. Is there going to be a trial? Who will be the witnesses?
The Disputed “Factual Basis”
In the Presidential Proclamation, President Trump states that there is a “border security and humanitarian crisis” at the southern border which is a “major entry point for criminals, gang members, and illicit narcotics.”
The Complaint offers four main refutations of fact. First, the Complaint argues with vehemence that there is “no evidence” and that it is “without factual basis” that “terrorists” are “infiltrating” the country on the southern border. However, the Complaint fails to mention that the Presidential Proclamation says nothing about terrorists or terrorism on the southern border and nowhere cites terrorism as one of its rationales. By itself, this deliberate false statement to a court is grounds for dismissing the Complaint.
Second, the states allege that illegal border crossings have declined, but the “evidence” they cite concerns border “apprehensions,” not crossings. By definition, there is no way to know how many illegal crossings occur.
Third, the plaintiff states aver that a wall will not decrease crime rates. Putting aside for the moment that this assertion ignores the crime of illegal entry, the evidence offered by the plaintiff states that illegal immigrants have lower crime rates than native-born Americans, but, again, those comparative statistics concern those illegal immigrants who were arrested and prosecuted, not those who committed all crimes. And the plaintiffs do not state what percent of all crimes illegal immigrants commit. That statistic might itself signify a crisis, and a substantial reduction of that number could be considered a considered a significant public accomplishment.
Fourth, the plaintiffs assert that there is no evidence that a border wall “will impact” the “smuggling” of dangerous drugs into the country. This empty rhetorical argument, which is widely echoed in the media, is that statistics show that most drugs seizures occur at border crossings and “points of entry,” not somewhere out in the desert where the wall will be built. Again, those statistics refer to the amounts seized, not the amounts that actually enter the country. And if, for instance, the remaining 20 percent of fentanyl that comes into the country at places other than points of entry could be significantly reduced, would that not be an accomplishment? Is the country currently experiencing a “fentanyl crisis” or not?
One piece of evidence that the Complaint does not mention is the universally-agreed upon figure that there are about 11 million illegal aliens in this country right now, or almost four percent of the population. One might reasonably regard that as a crisis both in fact and with respect to the rule of law.
The Alleged Violations of Law and the Constitution
In asking for a permanent injunction and something called a “judicial declaration” against the wall, the states assert that President Trump’s Proclamation of the national emergency violates the separation of powers. That is a wondrous accusation since the National Emergencies Act gives the President the authority to make such a proclamation and also provides for an act of disapproval by the Congress. Thus, the separate “powers” of those two constitutional powers are set out in the Act; they are the very subject of the Act. To attempt to make a case for a violation of the separation of powers, it would have to be contended that the NEA itself violates the Constitution. No such contention is claimed.
The Complaint alleges that the Proclamation violates Congress’ power over the purse, but the NEA specifically grants the President the power to make “expenditures during [a] national emergency,” which “total expenditures incurred” he must then report to Congress. (50 USC 1641). The third stated basis for the desired “judicial declaration” is the linguistically, legally, and constitutionally vague and meaningless accusation that Trump’s declaration “exceeds congressional authority” and “is ultra vires.” The states also toss in the fallback and always-available-about-anything accusation that there has been no “environmental impact statement.” As to that, one of the statutes having to do with “military construction projects” during a national emergency (10 USC 2808) that has been specifically invoked by the President provides that it may be implemented “without regard to any other provision of law.”
The New Federalism and the New Federal Judiciary
For their own secret reasons, the suing states are not asking for a preliminary injunction. Perhaps they wanted to avoid the additional burden of having to allege and prove “immediate irreparable injury,” although in so many words, that is precisely what they are alleging in their Complaint. On the other hand, since nothing has happened yet about construction of the wall and where and what the actual on-the-ground injuries are to be, it may not be possible yet to argue about immediacy and irreparability, which, again, might mean that they are trying to cover up that they have no standing. On the other hand, since they are seeking a permanent injunction as well as a declaratory judgment against the wall, there is nothing “preliminary” about their Complaint.
If the states can sue about their general “economies” and the general “health, safety, and well being” of their citizens, they can sue about anything. And now, they have. The concept of “quasi-sovereignty’ was introduced into our jurisprudence to remind the states that they are not completely “sovereign,” that is, almost independent. This national-emergency case is moving that definition closer to “sovereign.” Its subject matter is precisely what the Supreme Court forbade in Massachusetts v. Mellon in 1923: “abstract questions of political power, of sovereignty, of government” brought by the states.
It’s the New Federalism. In Massachusetts v. EPA, the defendant in that case was a federal agency, and the subject matter, greenhouse gases, was something that by definition is an interstate and therefore a concern of the federal government. Today, any national emergency at our southern border is trivial compared to the alarm about climate change, an issue that a huge number of people, including the media, numerous public officials at all levels of government, and countless “experts” vociferously insist is not only a national but an international emergency. Why should they not be able to sue in federal court? What is more, why shouldn’t they sue about the Green New Deal, which involves the same kind of joined political issues like economics, health, safety, well-being, and environmentalism as the southern borders lawsuit?
Thus, the President of the United States, invoking the relevant federal statute which provides for powers of the executive and legislative branches, has declared that there is a national emergency and a federal court is being beseeched to issue a decision overturning that decision based on its own finding that there is insufficient evidence of the emergency. If the federal judiciary can give itself jurisdiction to decide ultimate questions like what is and what is not a “national emergency,” does it have the same jurisdiction over a formal declaration of war or at least over the various “police actions” that our country has been involved in since World War II? Likewise, the War Powers Act of 1973 (50 USC 1541) has procedures for Congressional approval or disapproval similar to the National Emergencies Act. It has been used by presidents many times—so far, without judicial involvement.
