A Realistic Hypothetical Post-Apocalyptic National Emergency Declaration Scenario

[Nous]

The hypothetical scenario:

By the end of next week, several major airports have essentially closed or severely reduced flights and services due to insufficient numbers of air traffic controllers and/or TSA agents; customer lines are miles long in most major airports, delays and cancellations of flights are the rule, not the exception. Chaos reigns across the country in venues where essential federal employees are having to work without pay.

Trump finally declares a national emergency, specifying two statutes for the purpose of confiscating 5 billion dollars intended for military projects, in order to begin constructing a border wall between the US and Mexico. The next day, the House and Senate pass the bipartisan bill that the Senate passed in December (which included $1.6 billion for various border security projects), and send it to the White House for Trump's signature. The same day, before Trump signs the bill, a group of Representatives and Senators, including several Republicans, file suit challenging the constitutionality of the transfer of military funds for beginning construction of a border wall. Trump is confident that the suit will be quickly dismissed, and announces that he will sign the bill to reopen the government as soon as the suit is dead. Instead, within a week the district court judge issues a preliminary injunction blocking the transfer of military funds, and schedules a hearing for late February. The administration immediately appeals the issuance of the injunction, but both the Circuit and Supreme courts decline to expedite a review on the grounds that the District court did not abuse its discretion in issuing the injunction, and there is no evidence of any current or imminent emergency requiring an expedited review in order for the administration to obtain additional border security funding than what is appropriated in the bill waiting for Trump's signature.

In short, Trump declared a national emergency in order to acquire military funds to begin building a border wall, Congress passed the bipartisan bill that the Senate had already passed, which awaits his signature to restart the crippled government and disintegrating economy, and now it appears Trump will not get any additional money to begin building a border wall -- at least he won't be able to repurpose any additional funds any time soon. So . . .

Question:

In this hypothetical situation, do you support reopening the government in order to avert further governmental and economic disaster?

If your answer is No, please explain your reasons. Please explain on what grounds the appeals courts should expedite a review of the injunction, or why the injunction should be reviewed at all, that is, why should not the District court issue a preliminary injunction in this suit in order to preserve the status quo?

 

[sun rise]

There are many possible solutions for the shutdown, all of which Trump has rejected. I'd be happy with the Senate bill scenario you've outlined as well as other compromise possibilities.

I also agree with the premise that we're about to have some serious problems with air travel as more and more TSA agents look for paying jobs.

 

[fantome profane]

If this fiction about a “national emergency” protects Trump’s fragile ego and allows him to sign the bill, fine.

In reality Trump is not likely to get the money this way. But the time this gets to the Supreme Court and they make a decision it will be 2020. We will be living in a different world.

 

[esmith]

No answer due to the answer would be predicated on the scenario you put forth.
I say keep the government shutdown until the Dems put forth a proposition that gives them some programs they want along with approval for what the President wants which includes funding for physical barriers that those that work along the border say is needed along with engineering input.
If the President wants to use a Executive Order it is fine with me.

 

[Curious George]

The hypothetical scenario:

By the end of next week, several major airports have essentially closed or severely reduced flights and services due to insufficient numbers of air traffic controllers and/or TSA agents; customer lines are miles long in most major airports, delays and cancellations of flights are the rule, not the exception. Chaos reigns across the country in venues where essential federal employees are having to work without pay.

Trump finally declares a national emergency, specifying two statutes for the purpose of confiscating 5 billion dollars intended for military projects, in order to begin constructing a border wall between the US and Mexico. The next day, the House and Senate pass the bipartisan bill that the Senate passed in December (which included $1.6 billion for various border security projects), and send it to the White House for Trump's signature. The same day, before Trump signs the bill, a group of Representatives and Senators, including several Republicans, file suit challenging the constitutionality of the transfer of military funds for beginning construction of a border wall. Trump is confident that the suit will be quickly dismissed, and announces that he will sign the bill to reopen the government as soon as the suit is dead. Instead, within a week the district court judge issues a preliminary injunction blocking the transfer of military funds, and schedules a hearing for late February. The administration immediately appeals the issuance of the injunction, but both the Circuit and Supreme courts decline to expedite a review on the grounds that the District court did not abuse its discretion in issuing the injunction, and there is no evidence of any current or imminent emergency requiring an expedited review in order for the administration to obtain additional border security funding than what is appropriated in the bill waiting for Trump's signature.

In short, Trump declared a national emergency in order to acquire military funds to begin building a border wall, Congress passed the bipartisan bill that the Senate had already passed, which awaits his signature to restart the crippled government and disintegrating economy, and now it appears Trump will not get any additional money to begin building a border wall -- at least he won't be able to repurpose any additional funds any time soon. So . . .

Question:

In this hypothetical situation, do you support reopening the government in order to avert further governmental and economic disaster?

If your answer is No, please explain your reasons. Please explain on what grounds the appeals courts should expedite a review of the injunction, or why the injunction should be reviewed at all, that is, why should not the District court issue a preliminary injunction in this suit in order to preserve the status quo?

Your hypothetical leaves more questions in my mind.

First how do the Congressmen have standing? Second abuse of discretion is a standard of review. How would this standard be determined if the courts did not review the appeal? It seems silly that one would review an appeal to determine whether or not to expedite the case. Expedition is determined based on the motion. It is hard to see from the facts, if such a case did exist and such an injunction was granted how an appeal of the injunction would be granted. It will depend on the harm that is raised. An injunction would likely fall under 28 USC section 1292(b) or under the collateral order doctrine depending on who was involved in the case.

So, I think the Injunction will be subject to appeal. The expedition is likely discretionary. I cannot imagine the courts would not grant such expedition. But, does it really matter? The appeals would not stay the regular court proceedings, and appeals still take time even when they are expedited. I think rescheduling the initial proceedings is a better avenue if you are trying to resolve the issues.

As a side note, I think the understanding the Emergency powers is much more interesting than civ pro.

 

[Nous]

No answer due to the answer would be predicated on the scenario you put forth.

That's the point! The OP question doesn't ask what you think will happen, nor what you support in a different situation. It asks what you support given the hypothetical scenario described in the OP.

I say keep the government shutdown until the Dems put forth a proposition that gives them some programs they want along with approval for what the President wants

So you just don't care whether federal employees can continue to pay their mortgages, or if the economy explodes due to mass exiting of federal employees, if Trump doesn't get his wall immediately?

 

[Nous]

Your hypothetical leaves more questions in my mind.

First how do the Congressmen have standing?

Answering the OP question doesn't depend on who is found to have standing to challenge Trump's grab of military funds.

Nevertheless, I would think that the scenario described -- where Trump has declared a national emergency in order to acquire military funds for the purpose of fulfilling his campaign promise to build a border wall -- would readily give rise to members of Congress asserting an injury to their institutional rights amounting to vote nullification, which courts have recognized as appropriate grounds for members of Congress to challenge an executive act.

Second abuse of discretion is a standard of review. How would this standard be determined if the courts did not review the appeal? It seems silly that one would review an appeal to determine whether or not to expedite the case. Expedition is determined based on the motion. It is hard to see from the facts, if such a case did exist and such an injunction was granted how an appeal of the injunction would be granted. It will depend on the harm that is raised. An injunction would likely fall under 28 USC section 1292(b) or under the collateral order doctrine depending on who was involved in the case.

So, I think the Injunction will be subject to appeal. The expedition is likely discretionary. I cannot imagine the courts would not grant such expedition. But, does it really matter? The appeals would not stay the regular court proceedings, and appeals still take time even when they are expedited. I think rescheduling the initial proceedings is a better avenue if you are trying to resolve the issues.

The scenario described in the OP and the question asked on the basis of the scenario do not depend on such details.

Which is more important to you: acting to prevent the further disintegration of the federal government and economy, or Trump getting all the money he wants immediately to begin building a border wall?

 

[Shad]

In this hypothetical situation, do you support reopening the government in order to avert further governmental and economic disaster?

Nope. This is a problem of the system, how Bills are created and passed, the injection of pork, etc, etc. Congress needs to put some work instead of being bailed out by other factors.... again. I do not support bailing out of bad politics for the sake of other systems.

 

[Nous]

Nope. This is a problem of the system, how Bills are created and passed, the injection of pork, etc, etc. Congress needs to put some work instead of being bailed out by other factors.... again. I do not support bailing out of bad politics for the sake of other systems.

What specifically are you saying that Congress needs to do in this scenario? All you said is that "Congress needs to put some work". WTF does that mean?

 

[Shad]

What specifically are you saying that Congress needs to do in this scenario?

That was a general statement regarding Congress' lack of work habits.

My point was let Congress work out it's problems rather than using the economy or disasters to bail them out.

All you said is that "Congress needs to put some work". WTF does that mean?

You do know the role of Congress right? Congress needs to resolve the issue with the spending bill by Congressional override or by changing the bill to get the GOP voting for it.

 

[Nous]

That was a general statement regarding Congress' lack of work habits.

My point was let Congress work out it's problems rather than using the economy or disasters to bail them out.




You do know the role of Congress right? Congress needs to resolve the issue with the spending bill by Congressional override or by changing the bill to get the GOP voting for it.

Why don't you try answering the follow-up questions asked in the OP:

If your answer is No, please explain your reasons. Please explain on what grounds the appeals courts should expedite a review of the injunction, or why the injunction should be reviewed at all, that is, why should not the District court issue a preliminary injunction in this suit in order to preserve the status quo?

 

[Shad]

Why don't you try answering the follow-up questions asked in the OP:

If your answer is No, please explain your reasons. Please explain on what grounds the appeals courts should expedite a review of the injunction, or why the injunction should be reviewed at all, that is, why should not the District court issue a preliminary injunction in this suit in order to preserve the status quo?

I am not objecting to the points of objection you are highlighting. I am objecting to the principle of using an economic emergence to bail out bad politics.

 

[Nous]

I am not objecting to the points of objection you are highlighting. I am objecting to the principle of using an economic emergence to bail out bad politics.

You apparently have a firm opinion that Congress should do something, but don't have a recommendation as to what that should be. That's not very helpful.

At least unless and until there are sufficient grounds for impeachment, Congress is limited to passing bills for the president to sign, and overriding vetoes of such bills.

 

[Shad]

You apparently have a firm opinion that Congress should do something, but don't have a recommendation as to what that should be. That's not very helpful.

It can attempt a few things. It can try to pass smaller bills. For example some funding was released last week if I remember correctly. It can attempt to negotiate. It can attempt to override POTUS veto. It can concede to POTUS.

I wonder if the states could become involved as least regarding their reps.

At least unless and until there are sufficient grounds for impeachment, Congress is limited to passing bills for the president to sign, and overriding vetoes of such bills.

Congress can override POTUS veto in this case.

I wonder if the shutdown over time could be used for impeachment.

 

[Slabraton]

No answer due to the answer would be predicated on the scenario you put forth.
I say keep the government shutdown until the Dems put forth a proposition that gives them some programs they want along with approval for what the President wants which includes funding for physical barriers that those that work along the border say is needed along with engineering input.
If the President wants to use a Executive Order it is fine with me.

The Democrats have already compromised and signed on the Republican budget bill. It's Trump who changed his mind. You think you can bully the Democrats into more concessions while Trump gives up nothing?

NO WALL EVER

 

[Curious George]

Answering the OP question doesn't depend on who is found to have standing to challenge Trump's grab of military funds.

Nevertheless, I would think that the scenario described -- where Trump has declared a national emergency in order to acquire military funds for the purpose of fulfilling his campaign promise to build a border wall -- would readily give rise to members of Congress asserting an injury to their institutional rights amounting to vote nullification, which courts have recognized as appropriate grounds for members of Congress to challenge an executive act.


The scenario described in the OP and the question asked on the basis of the scenario do not depend on such details.

Which is more important to you: acting to prevent the further disintegration of the federal government and economy, or Trump getting all the money he wants immediately to begin building a border wall?

You asked whether in the scenario I support opening the government to to "avert further governmental and economic disaster?"

Of course I support that. However, your second question related to civil procedure and wasn't formed well or meaningfully. The claim has everything to do with the question and the standing has everything to do with the claim.

I do not think there is a precedent for not allowing a vote on disaster relief spending. There is no exclusive spending right possessed by congress. The congressmen would not have standing. That is not to say that no one would have standing. But who brings suit, and on what claim, are questions that are very important to resolving whether an injunction is appealable.

 

[Nous]

You asked whether in the scenario I support opening the government to to "avert further governmental and economic disaster?"

Of course I support that. However, your second question related to civil procedure and wasn't formed well or meaningfully. The claim has everything to do with the question and the standing has everything to do with the claim.

I do not think there is a precedent for not allowing a vote on disaster relief spending. There is no exclusive spending right possessed by congress. The congressmen would not have standing. That is not to say that no one would have standing. But who brings suit, and on what claim, are questions that are very important to resolving whether an injunction is appealable.

Well, again, courts have found that members of Congress have standing to challenge the constitutionality of the acts of the president when they can show they have suffered or will suffer a personal injury or institutional injury that amounts to vote nullification.

In any case, the second question doesn't require that it be a member of Congress to challenge the act.

 

[Curious George]

Well, again, courts have found that members of Congress have standing to challenge the constitutionality of the acts of the president when they can show they have suffered or will suffer a personal injury or institutional injury that amounts to vote nullification.

In any case, the second question doesn't require that it be a member of Congress to challenge the act.

And in your hypothetical there does not seem to be any standing.

And interlocutory appeals are very narrow types of appeal where who is involved and the claim itself are relevant to whether the appeal should be granted.

 

[Nous]

And in your hypothetical there does not seem to be any standing.

??? What does that mean? How did you determine that no one would have standing to challenge such a grab of money?

It's just a rough scenario in order to background a question!!!

 

[Curious George]

??? What does that mean? How did you determine that no one would have standing to challenge such a grab of money?

It's just a rough scenario in order to background a question!!!

I meant the congressmen. I established that because I asked and there was no good answer.