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16 States File Lawsuit Against Trump Administration Over National Emergency


More on the national emergency and border wall - the lawsuits have begun. Yesterday, 16 states filed a lawsuit against the Trump administration over this. Another suit was filed on behalf of border landowners and an environmental organization. Now, before any of these cases can be argued in court, the plaintiffs will need to establish that they have the right to sue.

For more on that, we're bringing in Robert Chesney. He's an editor for the Lawfare blog at the Brookings Institution and a law professor at the University of Texas at Austin. Welcome back to the program.

ROBERT CHESNEY: Thanks very much.

CORNISH: So let's talk about these states because some of them include non-border states like Illinois and Colorado. So do they have standing here?

CHESNEY: They're going to have a tough time maintaining their standing. But what they'll argue is that the redirection of funds that the president has in mind is going to come at the cost of various programs or activities and expenditures that would've happened within their borders. And so the sort of central claim for their particularized injury, which is the thing you've got to show - it's going to be a reference to that.

It's an uphill battle. You have the situation in which states attempt to litigate against federal government activities pretty frequently. Here in Texas, we're familiar with that. And from time to time, it does work. But it's no gimme. They're not as well-situated to show their standing as landowners, such as Nadia Alvarez (ph) in Texas, who's the named plaintiff - the first-named plaintiff in the public citizen lawsuit that was the first one filed.

CORNISH: What about the landowners and, say, the environmental group? Is there issue about the wall itself?

CHESNEY: Well, the landowners are in the best position to show that there is a specific and individualized injury that is manifest, right? They're going to have their land if eminent domain is to be used to take part of their land to build a road, to build the wall. There's little doubt they have standing. There may be other issues we can talk about in a moment. But they're in a great position.

The environmental groups or any third-party interest organization, no doubt, can point to some collateral impacts in obviously a very strong interest. And the only problem they really have is that there's a tradition of reluctance in recognizing standing for groups that are not hit in the same way by the action as I just described from the landowners.

CORNISH: Can we talk about whether or not the time is right to sue for - I guess, the term is, is it ripe - right? - especially if the administration hasn't actually used this money yet?

CHESNEY: So this is where it gets really interesting because the administration has these several different pots of money that they've assembled. So first we might notice of course there was over a billion dollars appropriated directly for this the other day right before the emergency declaration. So there's that money. There's money that he's trying to get his hands on in the form of military construction budget that's made possible to move around for limited purposes because of the national emergency declaration. And there are a few other pots as well.

And one of the things I expect the Justice Department will argue when they move against these suits that have been filed is that it's either too soon to say - that is, it's not ripe to sue over the allegedly problematic national emergency declaration, which I do think is problematic - because we don't yet know that the particular people suing are going to be affected by those particular dollars.

Notice, though, that that argument about the national emergency declaration - that doesn't affect all the pots of money here. There's also an argument that the anti-narcotics funding that the president intends to redirect - it's not the strongest argument the plaintiffs have, but that one doesn't connect to the national emergency.

CORNISH: We're going to leave it there. That's Robert Chesney with the Brookings Institution's Lawfare blog. Thanks for explaining it to us.

CHESNEY: Thank you. Transcript provided by NPR, Copyright NPR.