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Thursday, February 21, 2019

The Litigation on the National Emergency Declaration

When you read the complaint filed by the states, then you can see that the constitutional arguments are largely window dressing. If the statute does not give the President the authority to shift money around to fund the law, then I agree that his action is unconstitutional. I'm not sure, though, that the President will even argue that he has inherent authority to build the wall. The states do not say that they think the National Emergencies Act is unconstitutional.

One other thought. Suppose a preliminary injunction is granted by the District Court. The Government appeals is denied emergency relief in the Ninth Circuit. If the Supreme Court also denied emergency relief, isn't that a rather telling statement that there is not, in fact, an emergency? How can emergency relief be denied if there is an emergency under the relevant statute? (I realize this connection does not necessarily follow as a statutory matter, but in a common-sense way it kind of does.)

 

Posted by Gerard Magliocca on February 21, 2019 at 11:25 AM | Permalink

Comments

The states' suit is not ripe and should be summarily dismissed. No decision has been made yet on what funds - if any - will be diverted. Until such time as a specific diversion is proposed, any claims of harm by the states are purely speculative. Their suit is a political gesture and a frivolous waste of the court's time.

Posted by: Phil | Feb 25, 2019 7:39:42 PM

The answer is simple. Whenever President Trump exercises executive discretion on any matter, whether it's a determination of an emergency on the border or that a class of aliens is dangerous, the courts should scrutinize his decision carefully and substitute their judgment for his whenever they feel like it. Whenever any future Democratic president exercises executive discretion on any matter, the courts should defer. Isn't that the evolving rule in the 9th circuit?

Posted by: Douglas Levene | Feb 23, 2019 12:30:10 AM

One may reach the ruling here :

http://www.courts.ca.gov/opinions/archive/H044507.PDF

Thanks

Posted by: El roam | Feb 21, 2019 2:00:42 PM

Just quoting(concerning vagueness)from The people v. Jason Alan,here:

Further, a vague law invites arbitrary and discriminatory enforcement. (Ibid.) In McBoyle v. United States (1931) 283 U.S. 25, Justice Holmes explained that vague statutes are prohibited because “a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.” (Id. at p. 27.) The vagueness challenge here requires us to decide whether an order that defendant “stay away” from a specified location establishes a limitation clear enough to be constitutional.

Thanks

Posted by: El roam | Feb 21, 2019 1:58:09 PM

Just correcting the wrong and disrupted citation down there in my comment.So again :

The Tenth Circuit has specified the following standard for district courts to follow when deciding whether to issue a preliminary
injunction:

“To obtain a preliminary injunction the moving party must demonstrate: (1) a likelihood of success on the merits; (2) a likelihood that the moving party will suffer irreparable harm if the injunction is not granted; (3) the balance of equities is in the moving party’s favor; and (4) the preliminary injunction is in the public interest.”

Apologizing .......

Posted by: El roam | Feb 21, 2019 1:13:21 PM

Here I quote from:

Esther Koontz V. Randall D. Watson:

The Tenth Circuit has specified the following standard for district courts to follow when deciding whether to issue a preliminary injunction:

“To obtain a preliminary injunction the moving party must demonstrate: (1) a likelihood of success on the merits; (2) a likelihood that the moving party will Case 5:17-cv-04099-DDC-KGS Document 15 Filed 01/30/18 Page 13 of 28 14 suffer irreparable harm if the injunction is not granted; (3) the balance of equities is in the moving party’s favor; and (4) the preliminary injunction is in the public interest.”

Thanks

Posted by: El roam | Feb 21, 2019 1:07:41 PM

Good questions ( or rather are good, for being fundamental):

First, in preliminary injunction, the court doesn't touch or deal yet on merits, but in " one touch ".That is to say, that the court observes the prospective chances of each party, to win on merits, when trial is over. By that, one do understand, that the court, is freezing the legal and actual situation, put parties on hold, for finally prevailing at the end of the road. In accordance, until prevailed, there is no emergency state legally. That is to say, that the federal administration can act, but not based on the statute.

Second, one may challenge the statute itself on constitutional ground. This is because of its vagueness. That is to say, because the statute, impose restrictions, denies privileges and rights, without having prescribed therein, any parameter or clear criteria, when and why, the president can impose or declare emergency state. I am not sure about result in court, but rather more sure, that it does bear constitutional basis for such claim or challenge.

Thanks

Posted by: El roam | Feb 21, 2019 1:02:05 PM

I think an answer to your question is that courts don't really decide if there is an emergency under the statute; probably the question is something more like whether the President's interpretation of emergency is reasonable and whether his finding of an emergency given his interpretation (or a court's if his interpretation is unreasonable) is non-arbitrary. On the other hand, courts do decide whether failing to stay an injunction would cause irreparable harm in fact, though I am reasonably confident that even there some precedent of which I'm unaware says that some amount of deference is given to the executive branch when reviewing this sort of injunction.

Posted by: Asher | Feb 21, 2019 12:14:03 PM

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