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How One Branch Of Government Can Sue Another


When President Trump announced that he was declaring a national emergency at the border with Mexico, he made clear he was expecting a fight in the courts.


PRESIDENT DONALD TRUMP: We will possibly get a bad ruling, and then we'll get another bad ruling. And then, we'll end up in the Supreme Court, and hopefully, we'll get a fair shake.

CORNISH: Several lawsuits have already been filed against the administration. One that many are watching for is a suit from the House of Representatives - one branch of government suing another. For some insight into how this might play out, we called Stanley Brand. He was the general counsel for the House under Democratic Speaker Tip O'Neill in the '70s and '80s. I first asked him what argument the House could make about how it's been, in legal terms, injured by the president's move.

STANLEY BRAND: Well, their injury will be that their legislative power has been nullified, that they passed the law as provided in the Constitution by majorities in both houses. They sent it to the president, and he signed it, and he is ignoring it. And he's going around the limitations in the law to allocate money for a purpose they haven't denominated in the legislation.

CORNISH: So there's the money part, all right. Would they address the whole idea of whether or not it's an emergency?

BRAND: Yeah. Well, the question on whether this is an emergency is a question that goes beyond their injury or their standing to sue. That gets to what we call the merits. And that is, is the president's decision, assuming that the legislators have obtained standing, is that unconstitutional or illegal?

CORNISH: As former attorney for the House of Representatives, what's it been like for you to watch all of this play out?

BRAND: Well, in one sense, I'd been here before. When I was counsel and when I worked for Tip O'Neill, we had something called the War Powers Resolution, which was a reaction to the imperial presidency of Richard Nixon. And the debate at the time was has Congress by passing the War Powers Resolution in fact given the president authority he didn't have beforehand? Which is the authority to commit U.S. troops to foreign action without a declaration of war or to repel a sudden attack. So this is a history that we've gone through before where Congress delegates certain decision-making to the president and doesn't specify the limits for that delegation. And then later on, there's a fight when he applies it in a way that the Congress doesn't like.

CORNISH: What are you going to be listening for going forward?

BRAND: The Department of Justice will raise a host of what we call threshold issues. These are issues that stop you from getting into court at all, like standing. The other one is ripeness, which is essentially the case isn't ready to be decided because no adverse action has happened. Until the president goes beyond the $1.3 billion that was appropriated, the department will be able to argue no one's been injured yet because he hasn't spent the money past the amount that the Congress provided. So there'd be a host of those issues, including statutory issues, like whether the appropriation which provides for military construction can be construed to include a border fence.

CORNISH: Stanley Brand, thank you so much for speaking with us.

BRAND: Good to talk to you.

CORNISH: Stanley Brand is the Distinguished Fellow in Law and Government at Penn State's Dickinson Law School. Transcript provided by NPR, Copyright NPR.