Further to yesterday’s post on the legality of the declaration of a fake emergency, a friend has called my attention to this article by Professor Jonathan Turley: Why Trump will win the wall fight. If the topic is of interest to you, I commend the post to your attention, and offer a few additional observations.
Ad Hominem Remarks
Let me begin with four ad hominem observations about the good professor himself. First of all, he knows a damn sight more about this stuff than I do, so that, on the face of things, he is much better qualified than I to offer a legal opinion.
Running counter to my first point, I note Turley’s accurate claim that he represented the Republican House of Representatives in U.S. House of Representatives v. Burwell, and his grossly misleading claim that “we won the case.” They did win it in the district court, but it was settled while it was on appeal, and the district court’s injunction was dissolved.
Thirdly, Professor Turley holds a number of idiosyncratic legal positions, as explained in considerable detail in his Wikipedia article. He is something like Alan Dershowitz—someone who professes to be socially liberal but often argues from a right wing or libertarian perspective. Only not as crazy as Dershowitz.
Of course, idiosyncratic legal positions are not necessarily erroneous legal positions.
Finally, Turley conveys his views, both orally and in writing, with great self-assurance—and, may I say, much greater self-assurance than is necessarily justified by his often debatable positions.
I’m not going to summarize every argument Turley makes—you need to read his post for yourself if you want to know his views—let alone respond to all of them. But here’s a 30,000 foot high observation.
Addressing the fake emergency argument, Turley points to lots of declared presidential emergencies, and notes that there is no case law limiting the President’s right to declare any old thing an emergency, whether it is an emergency or not. So far so good, for the pro-Trump argument.
But my understanding is that the statutory definition of “emergency” hasn’t been litigated at all, or at least not in any definitive or dispositive way.
Think of it this way: if prior presidents have claimed that the legal meaning of the word “sheep” includes “goats,” and if no court has ever called found the occasion to rule on this claim, does that imply that the Supreme Court—when presented for the first time with a forcefully argued case—will agree with a current presidential assertion that the legal meaning of “sheep” should be deemed to include “all farm animals”?
I don’t think so.
Turley’s post strikes me as a shorthand summary of a legal brief for Trump. (Maybe Turley is angling to represent The Donald in this matter.) It does not strike me as a fully considered, balanced effort to predict how the Supreme Court will actually resolve the matter.