In the Supreme Court: Deference to Agency Interpretations of Their Own Rules

On March 27, 2019, the Supreme Court will hear arguments in the case of Kisor v. Wilkie. James Kisor served in the Marines in Vietnam from 1962 to 1966. In 1982, he filed for disability benefits for post-traumatic stress disorder. The Veteran’s Administration denied his claim the following year because he had not been diagnosed with PTSD at the time. He did not appeal.

Fast forward to June 5, 2006, when Kisor asked to reopen his claim, attaching a PTSD diagnosis and some of his service records that had not been in his VA claims file previously. This time, the VA granted his request, but made it effective June 5, 2006. When he asked for an earlier effective date to obtain retroactive benefits, the VA declined.

The Board of Veterans Appeals agreed. The VA regulations require it to reconsider a claim “if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim.” The Board acknowledged that Kisor had submitted records that had not been associated with his claims file earlier, but found that the records were not “relevant” because they did not change the critical fact that he had not been diagnosed with PTSD in 1983. The U.S. Court of Appeals for Veterans Claims affirmed.

The U.S. Court of Appeals for the Federal Circuit also affirmed. In that court, Kisor argued for the first time that the VA had misinterpreted the term “relevant.” Evidence is relevant, he argued, if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” The VA argued that evidence is irrelevant if it would not have mattered given other evidence. The records Kisor offered were not relevant, according to the VA, because they addressed an issue that was not contested: the fact that Kisor experienced an “in-service stressor” in Operation Harvest Moon. The Court of Appeals held that the term “relevant” is ambiguous in this context. Rather than deciding which party’s interpretation was better, the court followed Supreme Court precedent requiring deference to agency interpretations of their own regulations and held for the VA.

The problem is that those precedents have been under attack. In Bowles v. Seminole Rock in 1945, the Supreme Court held that an agency’s interpretation of its own regulations is controlling “unless it is plainly erroneous or inconsistent with the regulation.” Justice Scalia writing for the Court reiterated that holding in 1997, in Auer v. Robbins. Yet, by 2011, Justice Scalia had begun to wonder if it is “contrary to fundamental principles of separation of powers to permit the person who promulgates a law to interpret it as well.” Two years later, he had made up his mind that Seminole Rock is unconstitutional. Justice Thomas agreed, and Chief Justice Roberts, joined by Justice Alito, expressly invited petitions to reconsider it. Justice Gorsuch has expressed skepticism about it, and as Professor Chris Walker pointed out, Justice Kavanaugh likely would “be receptive to calls to eliminate — or at least further limit” Seminole Rock.

In Kisor’s petition for certiorari, he raised two questions. First, he asked whether Seminole Rock should be overruled. Second, he asked in the alternative whether Seminole Rock should yield to the substantive canon of construction that ambiguity should be resolved in favor of the veteran. The Solicitor General suggested that the Court address the question of whether the VA’s interpretation was correct. But the Court decided to address only the question of whether Seminole Rock should be overruled.

Professor Gillian Metzger pointed out, however, that Kisor’s case is not a good vehicle for overturning Seminole Rock because the VA’s interpretation came in a formal adjudication. The Court has long accepted that agencies have the discretion to make policy through either rulemaking or adjudication. Holding for Kisor here effectively could force the VA to engage in rulemaking to clarify the meaning of “relevant” in its regulations. Broadly applied, such a ruling could hamstring agencies significantly. But the Court doesn’t seem poised to overturn that well-established doctrine in this case.

So what’s the Court up to here? Metzger suggests that the cert grant in Kisor may be “best understood as part of a growing constitutional attack on administrative governance evident in Roberts Court jurisprudence.” Perhaps the Court will transfer the agency’s power to the judiciary by substituting its own statutory interpretation for that of the VA. This case could be a step along the way to invalidating the Chevron doctrine, under which courts defer to agency interpretations of the statutes they administer. Or perhaps Justice Kagan again will pull together a centrist majority to forestall disaster. Time will tell.

Rules Change, More Judges Confirmed: The Latest in Judicial Nominations

Senate Republicans continue to throw out long-held Senate traditions in their mission to confirm as many of President Trump’s nominees as possible to the federal bench. Once confirmed, these judges will rule on cases that affect all of us including environmental issues, health care, civil rights, and voting rights.

Following the confirmation of Neomi Rao last week to the influential D.C. Circuit, 20 percent of judges sitting on the circuit courts will have been nominated by President Trump. The U.S. Circuit Courts of Appeals are significant because they are often the last word in federal court cases.

In the last week alone, the Senate majority continued to defy the tradition of seeking support (aka “blue slips”) from home-state senators on judicial nominees:

  • Another nominee advanced despite lack of blue slips from home-state senators: The Senate Judiciary Committee will hold a hearing on Kenneth Lee (9th Cir., Cal.) and Daniel Collins (9th Cir., Cal.), who are both lacking support from Ranking Member Feinstein (D-Cal.) and Senator Harris (D-Cal.). Senators Feinstein and Harris have called for Lee’s nomination to be withdrawn due to his failure to provide a comprehensive record of his writings.
  • Second-ever judge confirmed without blue slips from either home-state senator: Last week, the Senate confirmed Paul Matey (3d Cir., N.J.). Matey is the second ever judicial nominee confirmed without support from either home-state Senator. Two weeks ago, Eric Miller (9th Cir., Wash) was the first ever judicial nominee confirmed without support from either home-state Senator.
  • Chad Readler (6th Cir., Ohio) and Eric Murphy (6th Cir., Ohio) were confirmed last week, despite lacking support from Senator Sherrod Brown.

Nominees with troubling records or who lack relevant experience continue to be moved forward:

  • Last week, the Senate confirmed Neomi Rao (D.C. Cir.). Rao’s nomination has been controversial due to her college writings, which expressed extreme views on sexual assault, gender equality, multiculturalism, and affirmative action. Rao did not disavow these views during her hearing. With her confirmation, 1 in 5 currently serving circuit court judges were nominated by President Trump.
  • Two weeks ago, Allison Rushing (4th Cir., N.C.) was confirmed despite having less than 12 years of experience and little exposure to the court on which she is nominated to serve.

Senate Majority Leader Mitch McConnell’s push to fast-track district court nominees: On top of these trends, the Senate majority is seeking to change the rules to bring nominees to the Senate floor at an accelerated pace. The Senate Rules Committee approved legislation to reduce hours of post-cloture debate on district court nominees from 30 hours to 2 hours. A legislative rule change would normally require a 60-vote threshold.

Sometime soon, Republicans are expected to use a maneuver to adopt the rule change on the floor with a simple majority (51 votes). This change promises to further speed up the confirmation of judicial nominees in the months to come. The 47 currently pending district court nominees could be confirmed in a matter of days once debate is limited to 2 hours.

Ignoring home-state senator opposition, nominating individuals with concerning records and insufficient experience, and changing rules of regular order are designed to transform the courts. Regarding the rule change, Senator Roy Blunt (R-Mo.) said that, “Presidents deserve to have their teams in place.”

Lifetime federal judges are meant to be impartial arbiters of the law, not serve at the pleasure of any elected official. They rule on areas of the law that affect people’s everyday lives: civil rights, criminal justice, education, environment, labor, immigration, health care, and many more issues. For the courts to fulfill their purpose as arbiters of the law, it’s critical that nominees be qualified and impartial and that senators’ advice and consent responsibility be respected.

The Senate is on recess this week and many senators will be in their home states. Tell your senators you care about the courts and want them to stand up for a fair judiciary.

Declaring a Climate Change Emergency: A Citizen’s Guide

This blog was originally posted on Legal Planet

Would it be legal to declare a national emergency for climate change? Would it be useful? Here’s what you need to know.

The possibility of declaring a national emergency to address climate change will probably remain under discussion for the next couple of years, particularly if the courts uphold Trump’s “wall” emergency.  For that reason, I thought it might be helpful to pull together the series of blog posts I’ve written on the subject.  I want to emphasize three key points at the beginning:

  1. Declaring a climate emergency should be off the table if the Supreme Court rules against Trump.
  2. An emergency declaration is not a magic wand that gives Presidents a blank check. A Declaration would allow some constructive steps to be taken, but within limits.
  3. The ultimate goal has to be congressional action, and an emergency declaration should only be considered as part of a larger legislative and administrative agenda.

Even if the Court upholds Trump, using this precedent to fight climate change will require some real soul-searching. Trump has violated a long-standing norm of presidential restraint in using emergency powers to address domestic policy. Whether to disavow or exploit that change in norms is a hard question. And declaring a climate emergency might help mobilize public opinion in support of legislative action, or it might cause a backlash that would make new legislation harder. But if the Supreme Court rules for Trump, the idea of a climate change emergency declaration has to be taken seriously.

Something of a compromise position might be to declare that the resilience of the electrical grid is a national emergency, not climate change itself.  That would still allow some important actions that would help reduce carbon emissions. Basically, many of the steps that are needed to decarbonize the grid would also increase its ability to resist and bounce back from disruptions due to national disasters or cyberattacks on the energy system.

With all that in mind, here’s what you need to know about the issues.

Would Climate Change Qualify as a National Emergency?

Trump has declared a national emergency so he can build his wall. But if illegal border crossings are a national emergency, then there’s a strong case for viewing climate change in similar terms. That point has been made by observers ranging from Marco Rubio to a Legal Planet post by Jonathan Zasloff.

I agree but I want to dig deeper because it’s such an important point. In order to uphold Trump’s emergency declaration, the Supreme Court will have to either rule that the definition of emergency is exceedingly broad or that courts have little or no power to scrutinize a presidential declaration. There is a genuine legal basis for calling climate change a national emergency, as opposed to Trump’s ridiculous border-security declaration.

If it upholds Trump’s declaration, it would be extremely hard for the Supreme Court to overturn a climate change declaration.  One reason is that some attributes of climate change and immigration are similar. Both issues involve the country’s relations with the outside world, an area where presidential powers are strong.  But it isn’t as if we suddenly found out about border crossings or climate change. Given these similarities, it would be very difficult for the conservative majority to explain why it was deferring to the President in one case but not the other.

The only major difference actually cuts strongly in favor of an emergency declaration for climate change: The U.S. government has already classified climate change as a serious threat to national security, and it is a threat that is getting stronger daily. Recent science indicates that climate action is even more urgent than we thought.

Trump’s stated justification in his proclamation is that “the problem of large-scale unlawful migration through the southern border is long-standing, and despite the executive branch’s exercise of existing statutory authorities, the situation has worsened in certain respects in recent years.” Trump’s stated justification in his proclamation is that “the problem of large-scale unlawful migration through the southern border is long-standing, and despite the executive branch’s exercise of existing statutory authorities, the situation has worsened in certain respects in recent years.” Climate change, too, is a “longstanding problem,” and it certainly has gotten worse despite the effort of the executive branch (Obama) to address the problem. Federal agencies, as well as Congress, have made it clear that climate is a serious threat to our nation.

The Environmental Protection Agency. EPA has made a formal finding, based on an exhaustive review of the scientific evidence, that greenhouse gases endanger human life and welfare both within the United States and globally. That finding was upheld by the D.C. Circuit.  The Supreme Court reviewed other aspects of the D.C. Circuit’s decision but pointedly turned down requests that it review this EPA finding. The scientific evidence is ironclad. If a foreign power had somehow invented a weather-control technique to impose these harms on the United States, no one would doubt that this was a very serious national security problem. Trump is now trying to defuse this argument by convening a presidential commission, but the make-up of the commission will deprive it of any credibility.

Intelligence agencies.  National security agencies have consistently viewed climate change as a serious threat.  In written testimony to Congress about threats to national security, the Trump Administration’s own Director of National Intelligence (DNI) discussed climate change.  His discussion didn’t equivocate about the reality or dangers of climate change.  Rather, he took the science, and the threat, seriously: “The past 115 years have been the warmest period in the history of modern civilization, and the past few years have been the warmest years on record. Extreme weather events in a warmer world have the potential for greater impacts and can compound with other drivers to raise the risk of humanitarian disasters, conflict, water and food shortages, population migration, labor shortfalls, price shocks, and power outages. Research has not identified indicators of tipping points in climate-linked earth systems, suggesting a possibility of abrupt climate change.”

The Pentagon. The military has also taken a proactive stance on climate change. Former Secretary Mattis was clear about the impact of climate change on national security: “Climate change is impacting stability in areas of the world where our troops are operating today. . . It is appropriate for the Combatant Commands to incorporate drivers of instability that impact the security environment in their areas into their planning.”

Congress. Congress has also recognized climate change as a threat to national security and more specifically to military infrastructure and activities.  The most significant action was the passage of the Defense Authorization Act of 2017, HR 1810. The Act was a funding statute for the Pentagon.  Section 335 of the Act states that “climate change is a direct threat to the national security of the United States and is impacting stability in areas of the world both where the United States Armed Forces are operating today, and where strategic implications for future conflict exist.” In a crucial House vote, 46 Republicans crossed the aisle to vote against an effort to take out the climate provision. President Trump signed the bill.

This is not the place to delve into issues that will be posed in legal challenges to Trump’s order nor into the wisdom of declaring climate change a national emergency.  But if the Supreme Court does uphold Trump’s order, it will be very difficult indeed to overturn a Presidential declaration that climate change is a national emergency.

What Legal Authority Would an Emergency Climate Declaration Give the President?

What government powers would be unlocked by declaring a climate change emergency? One immediate possibility would be to use the same power that Trump is considering in order to divert military construction funds to other uses – in this case, perhaps building wind or solar farms or new transmission lines. But what else could President X do?

The Brennan Center has compiled a helpful list of almost 150 statutes giving the President special powers during emergencies. The list doesn’t map the outer perimeter of presidential powers – there are other laws that give Presidents powers to take action on the basis of national security, and the President also has some ill-defined, though not unlimited, powers to take action without explicit congressional authorization. But the list provides a good start.   Since this issue has come up so recently, I can’t claim to have researched the statutes on the list in any depth, but my “prospecting” effort was enough to identify some promising areas for further exploration.

Here are some of the possibilities:

  • Oil leases are required to have clauses allowing them to be suspended during national emergencies. (43 USC 1341) If climate change is a national emergency caused by fossil fuels, then suspension seems like a logical response.
  • The President has emergency powers to respond to industrial shortfalls in national emergencies. (50 USC 4533). This could be used to support expansion of battery or electrical vehicle production. Another provision allows the President to extend loan guarantees to critical industries during national emergencies. (50 USC 4531). This could be used to support renewable energy more generally.
  • The Secretary of Transportation has broad power to “coordinate transportation” during national emergencies. (49 U.S.C 114). This might allow various restrictions on automobile and truck use to decrease emissions of greenhouse gases.
  • The President may invoke the International Emergency Economic Powers Act to deal with “any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States.” (50 USC 1701-1707).That description certainly applies to climate change. According to the Brennan Center, this Act “confers broad authority to regulate financial and other commercial transactions involving designated entities, including the power to impose sanctions on individuals and countries.” Conceivably, these powers could be deployed against companies or countries trafficking in fossil fuels.

There may well be others on the Brennan Center list that I missed.  Moreover, as I said above, the President has other powers relating to national security, statutory and otherwise, that aren’t keyed to a declaration of national emergency – for instance, the kinds of tariffs Trump has imposed on foreign goods (say those relating to oil and gas drilling, or to oil imports.)

You might well respond that using these various powers to deal with climate change is stretching them far beyond any reasonable understanding of congressional intent. But if the courts upholds Trump’s action, that will be a sign that they’re not willing to apply any meaningful oversight to presidential actions.

What Would be the Possible Benefits of an Emergency Declaration?

declaring a climate emergency could have benefits even apart from any concrete follow-up.  It would be a strong signal that the U.S. recognizes the urgent need to cut carbon emissions – a signal to the international community as well as courts and agencies in the U.S.  That would be a plus by itself.

Beyond that, I would favor tying emergency actions (at least at the start) to recognized issues that impact our society’s security.  One is grid resilience. Renewables and storage would make a particular contribution to resilience in areas where they have the least penetration, meaning the Southeast, but also in many other states.  Microgrids combined with distributed solar could also be useful in the wake of natural disasters like the hurricanes endemic to the Gulf Coast.  We need to jump-start the carbon transition in those parts of the country to pave the way for more comprehensive measures. We also need to upgrade the grid elsewhere.  Doing so would allow much bigger cuts in emissions from the electricity sector.

Another security-related issue involves military installations.  The military has already taken steps to increase use of renewables and to harden sites against sea level rise.  But a lot more could be done, particularly in the way of much greater electrical storage capacity (which might include use of electric vehicle batteries).  Military funds could be redirected for these purposes, and the military could also be involved in increasing grid resilience in areas surrounding military bases and for critical infrastructure more generally.   This could be especially helpful in starting the ball rolling in the Southeast, which remains the most backward area in terms of renewable energy.

A third option would be to take America out of the business of encouraging the use of coal in other countries.  Emergency and national security powers give the President considerable leverage over exports and financing of foreign projects. We should not be devoting our resources or production to encouraging countries like India to build more coal plants.

It would take a lot more work to turn these ideas into actionable proposals.  We’d need to know the effect of these measures, the available resources, and just what statutory provisions would support them. Closer study could also turn up additional possibilities.   It would probably take a sustained effort, maybe by a small team, to actually work through the issues in-depth.

* * * *

If the Supreme Court overturns Trump’s order, declaring a climate emergency seems far less appealing. But who knows if that will happen? And of course, we have no way of knowing just when we might have a President who actually wants to do something about climate change. That’s definitely not something we should take for granted! But if and when that does happen, he or she should have access to a full analysis of the policy options.

As much as I care about climate change, I am hoping that the courts reject Trump’s emergency declaration, which would make these questions moot. Even putting aside my feelings about the wall itself, I think it’s an undesirable expansion in presidential power.  But there’s no guarantee the courts will stop Trump. If his action is upheld, the door will be open for declaring a climate emergency, if we choose to go down that path.

Preserving Habeas Corpus for Asylum Seekers Just When They Need It Most

As a protest against the lawless seizure of a person, the ancient writ of habeas corpus is both an impediment to unlawful detention and a defense against the arbitrary exercise of power.  Habeas corpus is inscribed in the Suspension Clause of the U.S. Constitution, providing that “the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.".  While U.S. courts have long maintained the legal fiction that deportation is not a “punishment” (see, e.g., Nikolaev v. Weber), the considerable constraints on individual liberty and family integrity imposed by the detention and deportation of undocumented immigrants are undeniable.  The penal quality of the statutory framework for U.S. immigration enforcement is all the more real to individuals impacted by fluctuating deterrence policies at our Southern border since 2016.  In the face of higher and compounding barriers to protection, asylum seekers today are at increased risk of unlawful denials of their rights to humanitarian protection and non-refoulement.  Just as it does for those facing wrongful convictions and unfair trials, habeas corpus safeguards the liberty of those facing wrongful deportations and unfair denials of asylum.  The Ninth Circuit’s decision last Thursday in Thuraissigiam v. U.S. affirms habeas as a bridge to asylum in the United States for individuals who flee and fear persecution.

On March 7, the Ninth Circuit ruled that asylum seekers facing deportation have the right to challenge the summary denial of their asylum claims in federal court.  The ruling in Thuraissigiam applies to individuals who have failed to establish a “credible fear of persecution” in expedited removal proceedings conducted at the border.  The Ninth Circuit found unconstitutional the statutory provision barring habeas relief for final orders of deportation.  While the panel members “d[id] not profess to decide in this opinion what right or rights Thuraissigiam may vindicate via use of the writ,” they upheld the right of rejected asylum seekers in expedited removal proceedings like petitioner to enhanced access in the federal courts to relief from unlawful deportation.  Thuraissigiam is a bell-weather decision because it affirms the due process rights of asylum seekers under U.S. law in the very historical moment in which they face ever heightening impediments to international refugee protection in the United States.

Since ratifying the Protocol Relating to the Status of Refugees in 1968, the United States has recognized the right of refugees to seek asylum from persecution. The U.S. government also acknowledges that it may not forcibly return refugees to persecution (Refugee Protocol, art. 33, norm of non-refoulement).  These international rules – the refugee’s right to seek asylum and the U.S. obligation not to deport refugees to persecution – were incorporated into U.S. law in the form of the 1980 Refugee Act (8 USC 1158(a) and 8 USC 1225(b)).  Alongside the right of asylum and the bar on refoulement, both U.S. law and international law further recognize that refugees cannot be disfavored because of the circumstances in which they seek asylum, including the lack of valid identity and travel documents or the irregular manner in which they cross a border, since such is the nature of flight from persecution.  Under the Refugee Protocol, states “shall not impose penalties, on account of their illegal entry on refugees” (art. 31).   The prohibition against penalizing undocumented refugees is incorporated into U.S. law in the Immigration and Nationality Act provision permitting refugees to apply for asylum “whether or not at a designated port of arrival” (8 USC 1158(a)(1).

Despite acknowledging the right of refugees to seek asylum in irregular circumstances, over the past 40 years undocumented asylum seekers in the United States have faced a succession of additional hurdles in making their asylum claims.  Since the 1996 amendments to the Immigration and Nationality Act (INA), expedited removal proceedings have been the rule for individuals apprehended at U.S. border crossings without valid entry documents.  In particular, the INA (8 USC 1225(b)) requires asylum seekers in expedited removal to meet a threshold test for asylum before gaining access to immigration court.  Thus asylum seekers stopped at ports of entry or who surrender themselves to Border Patrol officers upon or after crossing the border are required to establish a “credible fear” of persecution (8 CFR sec. 208.30(e)(2)), but asylum seekers who are denied at the “credible fear” stage – unless they are successful in on-the-spot supervisory appeals or in summary review by an immigration judge – will be expeditiously deported.  Asylum seekers who fail to pass through the gateway of credible fear are deported without ever having the opportunity to fully establish their claim for protection from persecution in immigration court.

Credible fear and expedited removal procedures risk offending the spirit of the international prohibition against penalizing refugees for the very exigent circumstances in which they flee.  But errors in expedited procedures – where bona fide refugees are mistakenly found not to have a credible fear – result in the violation of U.S. law while offending the international prohibition against forcible return to persecution (INA section 235(b) and Refugee Protocol, art. 33). Such risks have been the reality for asylum seekers at our Southern border for over 20 years. But alongside this longstanding and complex regulatory framework, administration actions by the Trump Administration have further complicated asylum seekers’ efforts to access their right to humanitarian protection in the United States.

Newer impediments to refugee protection in the U.S. include two executive orders currently enjoined by federal courts: one purporting to limit asylum claims to authorized ports of entry; and another requiring Southern border crossers to “wait in Mexico” while their asylum claims are adjudicated. Recent policies purporting to burden asylum seekers also include a 2018 US Attorney General directive, successfully challenged in federal court, disfavoring asylum claims based on domestic violence and gang-related violence. Compounding such challenged executive actions, asylum seekers must also adjust to shifting enforcement trends by some Border Patrol officers: such as the arbitrary establishment of limits on the number of individuals who will be processed for asylum at particular entry points on particular days; or the provision of misinformation to asylum seekers improperly advised that asylum applications from particularly countries are no longer being processed at particular border crossings.

Thuraissigiam comes in response to this plethora of longstanding and more recent provisions and policies burdening the right to seek asylum.  Vijayakumar Thuraissigiam was denied the opportunity to establish the full merits of his asylum claim due to a determination that he lacked a credible fear of persecution in the context of his expedited removal proceedings. The ACLU Foundation and ACLU Immigrants’ Rights Project of San Francisco, New York, and San Diego brought suit in federal court on his behalf.   In finding for Mr. Thuraissigiam, the Ninth Circuit establishes the right of asylum seekers in expedited removal proceedings to an essential measure of due process through the constitutional writ of habeas corpus.

Litigation to Enjoin the National Emergency Declaration: An Overview of Alleged Injuries and Related Proof Issues

There are already six lawsuits challenging President Trump’s February 15 declaration of a national emergency (“the declaration”). Five of the six suits plead similar facts and legal theories and essentially seek the same relief - a declaratory judgment that the declaration is unconstitutional and/or unlawful and an injunction against its implementation.

These five complaints delineate, in varying detail,

  • recent legislative history of border wall funding, in which the 115th and 116th Congresses repeatedly denied Trump the varying amounts of funds he demanded for his wall;
  • the latest shutdown (December 22, 2018 - January 25, 2019), during which Trump expressed changing and contradictory positions about declaring a national emergency;
  • trends in data about undocumented immigration, drug-trafficking, and other criminal activity purportedly caused by undocumented immigrants;
  • specific harms to be suffered by individual, governmental, and nongovernmental-organization plaintiffs (“NGO plaintiffs”) from diversion of funds from appropriated purposes to building additional lengths of wall;
  • harms ensuing to various plaintiffs from the actual construction of additional lengths of wall in specific geographical areas;
  • Constitutional and statutory issues raised by the declaration; and
  • demands for declaratory and injunctive relief from the national-emergency declaration.

The sixth suit - not examined here - is Citizens for Responsibility and Ethics in Washington (CREW) v. U.S. Department of Justice (D.C. District Court). It has a different legal premise and goal: it’s a FOIA lawsuit to obtain the opinions of the U.S. Department of Justice’s Office of Legal Counsel on the power “...of the president to invoke emergency powers to declare a national emergency including, inter alia, the president’s power to invoke these powers to build a wall or other type of barrier along the U.S. border with Mexico.” (The CREW complaint is here.)

The purpose of this overview is to summarize the primary injuries alleged in the five suits similarly seeking declaratory judgments and injunctive relief and highlight where proof issues range from simple to complex. Litigating public policy decisions and their implementation can require substantial expertise in cases comprising short- and long-term environmental, economic, and social issues, with accounting, budgeting, and organizational-management consequences for diverse individual, organizational, and governmental stakeholders.

This review aims to provide readers with a clearer sense of how specific injury claims might have slower or quicker paths to partial or complete judicial resolution. Because this is a summary, it omits details that might be particularly valuable to certain readers. I hope I have provided enough information about the lawsuits, so readers can find the complaints of most interest to them.

One additional disclaimer is warranted: the overview offered here of alleged injuries is necessarily only a first impression and a time-constrained snapshot: over the course of litigation, all of the complaints probably will be amended (except, perhaps, the very specifically focused CREW complaint). Lawsuits frequently mutate and adapt as they navigate motion practice, discovery, evidentiary hearings, and judicial rulings. As the lawsuits progress, plaintiffs may, for example,

  • add or remove parties and claims;
  • modify, supplement, or delete pled facts of continuing injuries;
  • add allegations of new injuries;
  • update the legislative history of the declaration as it progresses through Congress and to and from the White House; and
  • refine or change the legal theories undergirding the suits as parties and facts change.

It also seems likely that new suits will be filed to address alleged injuries and theories different from those pertinent to the filed suits. The universe of harms alleged in the suits to date, while broad, is probably less than comprehensive.

All that said, here are the five similar lawsuits. (NB: the following list provides citations to paragraphs in each complaint that quote Trump sabotaging his declaration by saying, “I could do the wall over a longer period of time. I didn’t need to do this, but I’d rather do it much faster.”)

  • California, et al, v. Trump, et al (the multi-state suit filed in the Northern District of California); Complaint here, here, or here. See ❡ 160.
  • El Paso County, Texas and Border Network for Human Rights v. Trump, et al (Western District of Texas, El Paso Division); Complaint here. See ❡ 10.
  • Alvarez, et al, v. Trump et al (District of Columbia); Complaint here. See ❡ 31.
  • Sierra Club and Southern Border Communities Coalition v. Trump, et al (Northern District of California, San Francisco-Oakland Division); Complaint here. See ❡ 56.
  • Center For Biological Diversity, Defenders Of Wildlife, and Animal Legal Defense Fund v. Trump, et al (District of Columbia); Complaint here. See ❡ 2.

As originally filed, only two of these five similar complaints included governmental plaintiffs: the California suit, comprising only States and State officers (e.g., State attorneys general), and the El Paso suit. In the other three suits, the plaintiffs are individuals, individual NGOs, or coalitions of NGOs, as in the Sierra Club and Center for Biological Diversity suits.

Summary Of Injuries Alleged In The Complaints

(These are summarized from California, et al, v. Trump, et al, at ❡❡4-5; El Paso, et al, v. Trump, et al, at ❡❡ 85-105; Alvarez, et al, v. Trump et al, at ❡❡ 2, 5-13, 18; Center For Biological Diversity, et al, v. Trump, et al, at ❡❡ 15-16; and Sierra Club, et al, v. Trump, et al, at ❡❡11-19.)

The complaints present a mix of overlapping damages-claims in which the following appear to be leading themes:

  • private landowners allege they will suffer invasion of their property and disruption of their private use and enjoyment of their property from wall-construction;
  • environmental NGOs’ individual members allege they will suffer reduction/degradation of their enjoyment of environmental amenities from wall-construction;
  • environmental NGOs allege that their overarching organizational goals for environmental protection, management, and sustainability will be frustrated and obstructed - locally, by construction through, and disruption or destruction of, sensitive habitats and, more generally, by harm to larger ecosystems of which the local ecosystems are a part;
  • border-community NGOs allege that their efforts to reduce friction among and between border communities and government agencies in charge of border-control and immigration will be frustrated and/or obstructed;
  • local and state governments allege that they will directly lose funds for public purposes like drug interdiction and military construction projects, with additional economic injury ensuing from losses of funds that would, without the declaration, be injected into state and local economies; and
  • border communities (e.g., El Paso) allege economic injuries from reductions in tourism, relocation, and investment from the reputational and physical harm/disruption they suffer from the declaration and any attendant wall-construction.

Additionally, the NGOs and governments allege that they will have to re-allocate organizational funds and personnel, and adjust programmatic priorities to deal with new challenges posed by litigating and opposing, and/or coping with and adapting to, construction of more lengths of wall.

Proof Issues

From a litigation perspective, some of these alleged harms appear relatively easy to prove:

  • the environmental NGOs’ members’ use-and-enjoyment-of-environment injuries, especially those related to access to areas blocked by proposed new wall-construction;
  • the quantifiable losses of funds by state and local governments that were Congressionally appropriated specifically, or generally intended, for distribution for use in law enforcement, military construction, and other governmental projects;
  • the quantifiable diversions of NGO funds and personnel from other organizational priorities to the purpose of preventing construction of the additional lengths of wall; and
  • the individual landowners’ injuries from construction on and through their property (partly or entirely amenable to money damages in condemnation proceedings).

These four kinds of alleged injuries seem relatively amenable to incorporation in affidavits in support of partial or complete summary judgment, depending on the suit and parties’ claims. Partial summary judgments would be a way for plaintiffs to bring their cases relatively quickly to resolution by the Supreme Court, where all of this litigation is likely heading.

Partial summary judgment for plaintiffs in each of these suits on any of these less challenging proof issues might shorten the time to a declaration and injunction. Of course, this probably does not apply to the individual landowners’ claims, which might be susceptible to money-damages remedies in lieu of injunctive relief.

Other alleged injuries present more challenging proof issues. These will result from actual implementation of the national-emergency declaration. These issues include the adverse short- and long-term impacts resulting from construction of more wall: e.g., environmental damage, private and public economic injury, and law-enforcement degradation. And - for want of better terms - there are alleged “community-impact” and “organizational-impact” injuries to the state and local communities and NGOs. These can include opportunity costs associated with re-prioritizing public- and private-sector organizational goals and re-allocating funds among different public- and private-sector budgeting priorities.

Expert testimony at evidentiary hearings appears necessary for this latter group of issues. Plaintiffs will want to call experts in environmental science, law enforcement outcomes, community development, government finance and budgeting, and economics.

Economists will be helpful in providing evidence on, among other things, loss of economic multiplier benefits to states and localities from losing appropriated federal funds that would be spent by the federal government or state and local governments on projects within their borders. Among the matters NGO and government plaintiffs also might try to prove is the additional cost of finding alternative short-term and long-term funding for initiatives they might have to forego without the appropriated funds, including the predictable short- and long-term financing costs of alternative sources of funds.

Next, we will probably see plaintiffs in one or more of these suits seek summary judgment on all or some of their claims. Tactically, even partial summary judgment in one of these districts could yield a nationwide injunction that would stop implementation of the declaration.

Regardless of how the litigation proceeds, it’s important to remember that the ultimate solution to the wall is legislative. Veto-proof supermajorities in both chambers of Congress must reject this absurd project to defeat it.