“Congress’s vote, even if vetoed, would solidify any court’s understanding that the so-called emergency is really part of an end-run around a legislative branch that is unconvinced an emergency exists, that refused to fund the wall, and that is constitutionally in charge of federal spending,” Shane said.
“There will be a question raised as to whether a court should get into this quite so early,” Shane 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.
“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.
“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 the president has merely requested that governors support a mission by sending up their National Guard, the Guard members remain under the control of the states,” Shane said. “There is no requirement to comply.”
“Whatever one’s views on immigration policy or border security, the refusal of Republican legislators to join Democrats in re-opening the government before negotiating with President Trump is intensifying a genuine constitutional crisis,” Shane writes.
As the Senate Judiciary Committee begins the confirmation hearing for William Barr, Professor Peter Shane discusses the role of an attorney general and their relationship to executive power.
“The interpretive approach of Justice Department lawyers to the Constitution is very important because many separation-of-powers issues never wind up in court,” Shane said. “Barr’s method is not uniquely his, but it does represent a particularly aggressive school of executive power thought.”