I understand Slate is not Lawfare or Scotusblog, but: really?
What Trump did not predict—and probably could not, given his tenuous grasp on the legal limitations of executive authority—is that Monday’s lawsuit is, at bottom, extremely conservative. The suit does not appeal to the justices’ empathy for vulnerable immigrants or question whether Trump’s racist motives might undermine the declaration’s legality. Instead, it relies upon ancient principles of separation of powers to make a very strong case that Trump has short-circuited the Constitution. It is not a lawsuit about equality, or dignity, but about the nuts and bolts that undergird the constitutional lawmaking process. It is wonky, and formal, terse, and unromantic. And if the Supreme Court’s conservatives have any consistency, Monday’s lawsuit should persuade them to block Trump’s wall.
Legal pleadings are not internet postings. There are rules of procedure they must follow, and a concept called "cause of action" which they must fit their facts into. You can't sue the government because Trump said something outrageous or stupid, any more than you can "Lock her up!" because a candidate inspired that chant at a rally. If Trump's declaration of a national emergency can be overturned in a court of law, it won't be because 5 our of 9 Justices on the Supreme Court share the outrage of 9 out of 10 political commentators on the subject. The law simply doesn't work that way.
So what clever thing did the 16 states do? They actually relied on the Constitution, rather than Twitter. Huh.
The 16 plaintiff states center their 57-page complaint around a basic argument: that the president has violated the cardinal principle of separation of powers by trammeling Congress’ will to achieve his policy preferences. Trump, the lawsuit alleges, “has used the pretext of a manufactured ‘crisis’ of unlawful immigration to declare a national emergency and redirect federal dollars appropriated for drug interdiction, military construction, and law enforcement initiatives toward building a wall on the United States-Mexico border.” There is “no objective basis” for this declaration, as Trump himself has essentially admitted. Further, “[t]he federal government’s own data prove there is no national emergency at the southern border that warrants construction of a wall,” and unauthorized entries are “near 45-year lows.”The point is, you see, that litigants (!) have gotten smart after two years of Trump:
But the states aren’t simply upset because they would have preferred that the money be used for military construction and law enforcement. They are upset because, they allege, the money has been taken from these projects and from their citizens to be used illegally. (emphasis in original)
Litigants have learned well, after two long years of arguing over the travel ban, that the five conservatives have little to no interest in probing what lies in the president’s heart. They simply don’t care about what might or might not be a pretext, or whether tweets should count. They want clinical analysis of formal constitutional authority and presidential power.
I know Dahlia Lithwick is a lawyer; I assume Mark Joseph Stern is, too. But lordy, this is a sad excuse for analysis even by non-lawyers. Litigants (not lawyers? are litigants writing their own pleadings now?) have learned to argue the law, not make political arguments? Who knew that would work in a court of law? Yes, I know judges used Trump's tweets as the factual basis of their legal reasoning in ruling against this Administration, and the Supreme Court pointedly refused to do that in upholding the final version of the Muslim travel ban. But the Supreme Court is ALWAYS going to prefer law over incident; that's what they do! How they do it may be a subject of controversy (I still despise the reasoning and the outcome of the Hobby Lobby decision; I know how critics of Roe v. Wade feel on that subject.), but that, as the GEICO ads say, is what they do. I'm glad Lithwick and Stern are optimistic about this suit; but do they have to dumb down the legal arguments to the point they are barely arguments anymore?
Besides, I think this is a much better analysis of the legal issues:
Here is a broader lesson. It is important to distinguish between two questions. The first is whether a president has undertaken an action that is, in some technical sense, unlawful. The second is whether a president has undertaken an action that is, in some fundamental sense, illegitimate in a democratic society.
The answer to the first question is probably yes -- but it’s a mistake to be sure about that. The answer to the second question is certainly yes -- and it’s a mistake to be unsure about that.
Now: is that illegitimacy something the courts will decide voids the President's declaration of an emergency, and all actions taken pursuant to that declaration? Quite honestly: it would be a mistake to be sure about that. Of course, the decision that an action is unlawful is always a technical issue; but my fundamental issue is always your technical issue; so that argument, even that use of the term, doesn't advance our understanding very much. Better to just say we live in hope that the courts will save us from ourselves; because as a government, that's pretty much the only hope we have left.