“It’s clear that they anticipate people trying to minimize the liability, perhaps in creative ways,” Hoffer said.
“There will be a question raised as to whether a court should get into this quite so early,” Shane said.
“I don’t think anyone can confidently predict where we’re going to be five, ten, or 20 years from now on this,” Berman said.
Undoing the court’s substantive due process analysis is “wildly unlikely given how much Constitutional law has now been built on the foundation of the due process clause,” Shane said.
“The scale is stacked on the side of the employer,” Colker said.
“Even though Trump’s political maneuver to get around an uncooperative Congress looks like it stretches the Constitution, the questions presented in court will raise ordinary and complicated issues of administrative law,” Shane said.
“In a potential judicial dispute over the wall, the Democratic-led House would argue that the Defense Department was undermining Congress’ appropriations power by spending funds that had not been authorized for that purpose,” Shane said.
“The first is the question of causation,” Simmons said. “They have to prove that in fact it was the fentanyl that the doctors and nurses administered that actually caused these deaths.”
“Courts are reluctant to second-guess the president on matters of national security,” Shane said.
“It’s hard to know how exactly this is going to unfold politically or judicially,” Shane said.
“Because the president’s words are so at odds with the ordinary meaning of ’emergency,’ any brief challenging the emergency would be negligent not to quote him,” Shane said. “Whether a court would use those words to void the declaration is another matter.”
“If it’s successful, I think it is a creative way that lawyers are trying to help individuals actually vindicate their claims,” Cole said.