//  2/24/19  //  Commentary

Cross-posted from Dorf on Law

The lawsuit by California and 15 other states seeking to block President Trump from building part of a border wall with redirected funds repeatedly alleges that Trump's emergency declaration and other actions are "unlawful and unconstitutional." The lawsuit includes four claims for relief, alleging: (1) a violation of separation of powers; (2) a violation of the Appropriations Clause (Article I, Section 9, Clause 7), which forbids money from being "drawn from the treasury, but in Consequence of Appropriations made by Law;" (3) that the president has acted ultra vires by exceeding the scope of authority granted him by the Constitution or statutes; and (4) a violation of the National Environmental Policy Act (NEPA), with respect to California and New Mexico, insofar as the proposed border wall construction was not preceded by the preparation of an environmental impact statement (EIS).

That fourth claim pretty clearly alleges a statutory violation only. The Constitution does not require the preparation of an EIS; NEPA does; thus, failure to prepare a required EIS violates NEPA but not the Constitution.

What about the other three claims? Each states that the president acted without constitutional authority. To what do these claims refer?

Trump's emergency declaration claims authority based on "the Constitution and the laws of the United States of America." Insofar as Trump argues that he would have inherent presidential authority to redirect funds even without statutory authorization, the states' lawsuit attacks such a claim by deeming Trump's actions unconstitutional. Trump appears to say that the Constitution gives him power to redirect funds; the states say it does not; that's a pretty clear constitutional issue (and a winning one for the states, if a court reaches the merits).

However, notwithstanding its reference to the Constitution, the emergency declaration does not seem to claim inherent presidential authority to redirect funds. It describes how funds would be used in ways that roughly follow the limitations of the National Emergencies Act (NEA). Of course, the states' lawsuit and other lawsuits that have been or will soon be filed argue that the NEA does not authorize Trump's emergency declaration -- and if neither the NEA nor any other statute authorizes the diversion of funds, then Trump lacks authority to divert funds in light of the Constitution. So in a sense, the states' claim that there is no statutory authority necessarily entails a constitutional claim.

But is that the sense of unconstitutionality we should care about? Should a claim that the president has exceeded or plans to exceed his statutory authority be denominated a constitutional violation? Does it matter?

Broadly speaking, the Constitution contains two kinds of provisions: authorizing provisions and prohibitory provisions. Examples of authorizing provisions include the powers of Congress to legislate on the subjects set forth in Article I, Section 8, the power of the president to command the armed forces as set forth in Article II, Section 2, and (subject to congressional override) the power of state legislatures to determine the time, place, and manner of congressional elections as set forth in Article I, Section 4. Examples of prohibitory provisions include the limits on federal action set forth in Article I, Section 9 and the Bill of Rights and the limits on state action set forth in Article I, Section 10 and the Reconstruction Amendments.

If we want to be sticklers, we might say that the term constitutional violation only properly applies to an action that contradicts a prohibitory provision. If Congress passes a law forbidding criticism of the president, that pretty clearly violates the First Amendment. By contrast, if Congress passes a law banning gun possession near schools, we would say that the law is without effect (because, per the SCOTUS decision in US v. Lopez, it is not authorized by the power to regulate interstate commerce or any other power of Congress), but we would not say that the law violates the Commerce Clause. The law no more violates the Commerce Clause than it violates the Territories Clause; neither is a source of power for the law; that's all.

Distinguishing constitutional violations from constitutional non-authorizations in the way I've described in the foregoing paragraph would make considerable conceptual sense, but our practices do not draw this distinction. We routinely speak of Congress acting unconstitutionally when it passes a law that falls outside its enumerated powers. Likewise, we say that the president acts unconstitutionally when he attempts to exercise a power committed to another branch.

Indeed, our practices are more subtle. We tend to speak of some unauthorized actions as, ipso facto, unconstitutional. Yet we do not say that all congressionally unauthorized executive actions should be called unconstitutional. Perhaps the best account of our conventions would distinguish between, on the one hand, (a) executive actions for which there is a plausible but ultimately unsuccessful claim of statutory authority and, on the other hand, (b) executive actions for which there is no plausible claim of statutory authority.

If a president were to claim authority under a clearly irrelevant statute--arguing, say, that the Marine Mammal Protection Act (MMPA) permitted the president to divert funds to build a border wall--then we would have no difficulty concluding that the president was effectively saying that he had the inherent presidential power to appropriate money, notwithstanding the assignment to Congress of the power to spend and the Appropriations Clause. Invoking the MMPA would be like invoking no statute at all, so it would be a de facto claim of inherent constitutional authority and would be appropriately rejected in those terms.

The NEA is clearly more relevant to a border wall than the MMPA. After all, the NEA authorizes diversion of appropriated funds to certain sorts of construction projects in some circumstances, whereas the MMPA authorizes no such thing under any circumstances. So the NEA is at least in the right ballpark.

But that's not saying very much. Suppose one thinks that Trump's claim of authorization under the NEA is extraordinarily weak, because there isn't remotely any emergency "that requires use of the armed forces." If so, then one might conclude that while the NEA and other statutory authorities are more relevant than the MMPA, they are still so far from satisfied that Trump might as well be claiming inherent presidential authority to reallocate funds. One would then say that Trump is not  acting merely without authorization and thus unlawfully, but that he is (tacitly) making a false claim of constitutional authority, i.e., that he is acting (in a way that our conventions would fairly describe as) unconstitutionally.

Does it matter? In an immediate practical sense, no. A court could enjoin the administration from diverting federal funds regardless of whether it denominates Trump's position as merely unauthorized/unlawful or as unconstitutional. Nonetheless, we can view the lawsuits challenging Trump's emergency declaration and his border wall as aiming not only at judicial relief -- for which the label "unconstitutional" doesn't add anything to the label "unlawful" -- but as part of politics.

There's nothing wrong with that. Nonfrivolous lawsuits often aim to affect public opinion as well as to get judicial relief. Sometimes they win by losing, i.e., they fail to obtain the relief they seek in court but move public opinion in a way that serves a movement's long-term objectives. The ability to brand Trump a threat to constitutional democracy is worth something in the political arena, even if it does not increase the likelihood of obtaining judicial relief.

And because Trump is a threat to constitutional democracy, the stakes over whether to call his bogus emergency "merely" unlawful or also unconstitutional are non-trivial.


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