Criminal Justice & the Rule of Law

Judicial Deference and the Inevitable Border Emergency Litigation

Robert Chesney
Saturday, February 16, 2019, 9:14 AM

When litigation comes, the resolution of the president's invocation of a national emergency and of 10 USC § 2808 will turn to no small extent on the concept of judicial deference.

Big Bend National Park (Source: Flickr/Marcus Calderon)

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Mindful that there is a lot of ink being spilled on the president's formal declaration of a national emergency, I am going to keep this analysis very brief, focusing on two things: first, the role that judicial deference will play in looming litigation, and second, the hints in the declaration that Trump may have his eyes on Big Bend National Park.

Judicial Deference

As expected, President Trump both invoked a national emergency and then from that foundation also invoked 10 USC § 2808—the statute that under certain circumstances allows reprogramming of unobligated military construction ("milcon") funds in order to support certain other milcon projects (see here for my more-detailed explainer). When litigation comes (which it certainly will), both these steps will be challenged. And how both will be resolved will turn to no small extent on the concept of judicial deference.

The judicial deference concept that I have in mind is the principle I wrote about at great length here, in a Virginia Law Review article many years ago. Basically, there is a robust tradition of courts declining to second-guess the factual or quasi-factual determinations of a president on matters relating to national security and military affairs—and all the more so as those determinations shade into policy judgment or take on a predictive aspect. The justifications invariably involve a combination of comparative institutional competence (the claim that the executive branch by dint of superior resources, experts, information, experience, etc. can make more accurate determinations on such matters) and comparative institutional legitimacy (the claim that the Constitution in some fashion allocates such judgments to the executive branch anyway, competent or not). And that’s even without accounting for situations in which Congress, for better or worse, appears to allocate to the president some particular determination as part of a statutory regime.

Well, all that looms pretty large for the potential litigation from landowners facing eminent domain funded via the emergency declaration and its consequences. That’s so at two separate stages, one of which seems a bit more deference-friendly than the other.

First, there will of course be a claim that there is no “emergency,” and thus the National Emergencies Act (NEA) declaration should be treated as a dead letter. The challenge here is that the NEA offers no definition of “emergency” against which one can test the president’s declaration. The argument instead would have to be that there are commonsense outer boundaries to the concept, boundaries Congress implicitly assumed a president would not cross thanks to basic assumptions about civic virtue and truthfulness. And then, marshaling the ample evidence that this really was just a convenient work-around that appealed to the president as a matter of politics and policy, the plaintiffs would hope to secure a rare-instance of judicial second-guessing. That’s an awfully tall order, but not inconceivable.

The second stage in the argument is slightly more promising for these notional plaintiffs. Even assuming there is a proper emergency declaration, no money moves under 10 U.S.C. § 2808 unless the emergency is one that “requires the use of the armed forces” and the resulting spending supports that military function. Trump certainly did invoke that language and assert such a need. Again, judicial second-guessing seems a tall order. But the “requires the use of the armed forces” language has a bit more meat on the bones than mere “emergency,” particularly since it is embedded in a statute that entirely concerns the allocation of “military construction” dollars (defined to mean only construction on military land or buying land to turn it into military land). It seems to me that if the courts will second guess at any point in this, this is the point where they’ll do it.

Big Bend

Let me quickly note this part of the declaration:

Sec2.  The Secretary of Defense, the Secretary of the Interior, the Secretary of Homeland Security, and, subject to the discretion of the Secretary of Defense, the Secretaries of the military departments, shall take all appropriate actions, consistent with applicable law, to use or support the use of the authorities herein invoked, including, if necessary, the transfer and acceptance of jurisdiction over border lands.

What to make of that?  Keep an eye on Big Bend National Park here in Texas, and the possibility that leaders at the Interior and Defense Departments will decide it would indeed be fine to allocate its border-facing land from the latter to the former. And remember: Both the Department of the Interior and the Department of Defense currently have only “acting” secretaries.    

Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.

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