Obama Declared 13 National Emergencies — 11 Are Still Active

Fourth, could liberals run to the courts to block Trump from using the military to build a border wall?  No.  Only those with “standing” can bring a lawsuit.  How is anyone harmed?

The federal courts have been waging Jihad against citizens bringing lawsuits for decades.  The federal courts have been raising the bar higher and higher to make it nearly impossible for anyone to challenge the actions of government agencies or public officials.  Specifically a complaint that is shared generally by much of the population cannot establish standing.

Contrary to strongly-held popular belief, the U.S. Supreme Court has clearly ruled that taxpayers do not have standing to challenge government spending, revenue, or action merely because they are taxpayers.  See, Daimlerchrysler Corp. v. Cuno, 126 S.Ct. 1854, 164 L.Ed.2d 589, 547 U.S. 332 (2006).  So the Left cannot block Trump’s plans by suing as taxpayers.  (The only exceptions involve use of funds to establish a religion or local government taxpayers.)

Similarly, Members of Congress do not have standing either.  Certainly individual Members of Congress do not.  See Raines v. Byrd, 521 U.S. 811 (1997).

To bring a lawsuit, one must show that they are tangibly harmed, personally, not just in disagreement with a policy.  If Trump uses some of the $700 billion in the omnibus bill to build a border wall, everyone will be more safe.  How is anyone harmed?

Fifth, can private landowners, some of whom will be liberals, go to court and stop the use of private land as an easement taken by eminent domain?  No.

There is absolutely no defense available to taking land by eminent domain.  How much compensation is owed for taking an easement as a strip of land could take years to fight out in court.  But the actual right to use the land cannot be contested.  The government can take an easement immediately and then fight later over how much money should be paid to the landowner.  Remember that this was the legal holding of the over-the-top, controversial U.S. Supreme Court precedent Kelo v. City of New London, Connecticut, 545 U.S. 469, 125 S. Ct. 2655; 162 L. Ed. 2d 439 (2005).  (Kelo ruled that it is not even necessary to show a “public purpose” for eminent domain, which goes too far.)

Legal challenges will not stop construction, even it takes years to reach agreement on the compensation payable to landowners.   To finance payment of compensation, Trump should consider offering a land swap of federally-owned tracts of land or selling such public lands.

Sixth, opponents of Trump’s agenda will try to find individual landowners along the border, who might be liberal, to object in general to the reprogramming of military funds to build the border wall.  But those landowners should not be considered to have standing, for several reasons:

(A)  It would be speculation as to whether the government will take any action at their particular section of the border.  How would a landowner know that his or her part of the border is a stretch where the planners believe an actual wall is truly needed, as opposed to other natural or physical barriers?  It would be — under standard doctrines of standing — insufficient to speculate that that particular landowner’s land is going to be affected at all.

(B)  There is a concept called “exhaustion of administrative remedies.”  If an individual landowner doesn’t want a border fence along their particular stretch of the border, they would first have to tell the government that they object.  The courts would traditionally wait until the government can try to find agreement with the landowner before allowing a lawsuit.  A lawsuit would be invalid as not yet being “ripe.”  Traditionally the courts would require a plaintiff to actually talk to the government agency first to see if their stretch of land is actually going to be affected or not, whether a compromise can be worked out, etc.  Those are the currently-existing standard rules that always govern. (In fact, on policy, one could argue if a landowner doesn’t want a wall along their property, fine. Let all the trespassers funnel through that person’s land, trampling the ground, leaving trash everywhere, and frightening their family in their home at all hours.  If they don’t want a border wall on their property, fine.  Check back with us later and tell us how that worked out for you.)

Seventh, open border advocates of course will also find some would-be gate-crashers from another country to say that they want to break the law and cross the border in the unmanned frontier and the border wall will stop them from breaking the law.  That should be laughed out of court, because one does not have a “right” to break the law.  Similarly, they will try to find immigrants in the U.S. who want to bring family members into the U.S.A.  But they have legal avenues for doing that, by sponsoring their family members to come in legally.  Those ideas may impress an individual federal trial judge for a short time, but it should not survive on appeal.

(Note:  Trump does need to get changes in the law through Congress or perhaps just issue clarifying regulations from DHS that a foreigner can apply for asylum at a U.S. consulate without entering the United States.)

As an attorney in Virginia for 21 years, who has worked for both Judicial Watch and more recently Freedom Watch created by Larry Klayman, I often have to explain the concept of “standing” to clients who want to bring “good government” lawsuits or hold the government accountable to its rules.

When Sheriff Joe Arpaio sued to challenge Barack Obama’s amnesty by executive order, the U.S. Court of Appeals for the District of Columbia ruled that Arpaio did not have standing, even though illegal immigration cost him actual money in (then) running the jails of Maricopa County.  I worked on that legal case, from helping write the original complaint (with an eye toward establishing standing from word one) to legal memoranda in the U.S. District Court for the District of Columbia, filed by Larry Klayman, to the appeal by Larry Klayman to the U.S. Court of Appeals for the District of Columbia.  Arpaio’s legal pleadings established standing as strong as one could imagine, an iron lock on showing standing.

Didn’t matter.  The courts completely contradicted other precedents, as powerfully demonstrated by the dissenting opinion of the Honorable Janice Rogers Brown, an African-American appeals judge with more intellect and intellectual integrity in her little finger than the U.S. Congress combined.

In deadly seriousness and a straight face, I honestly have to explain the law of standing in federal courts as follows:  If you want to encourage the expansion of government and government intervention in the economy or society or prevent the streamlining of government, you have standing.  If you want to hold government accountable to staying within its rules or you want to block left-wing policies, you don’t have standing.  it’s pretty much that simple.  Are you a liberal?  You have standing.  Are you a conservative?  You don’t have standing.  Having studied hundreds of precedents on standing, I must say that with absolutely no humor, exaggeration or hyperbole.  I could not truthfully say anything different.

However, the federal courts have established some very strong precedents ruling that almost no one has standing to challenge anything that the government wants to do — unless the government action directly  harms the plaintiff personally and individually.

Therefore, it will be extremely awkward for the federal courts to ignore and contradict their past precedents and claim that anyone has standing to object to the building of a border wall by the U.S military.

Finally, President Trump’s Administration under incoming Attorney General William Barr has got to stop this foolishness with lawsuits brought before a cherry-picked judge in the Ninth Circuit whom the plaintiffs believe will be unusually sympathetic to them and hostile to Trump’s policies.

The Department of Justice under Bill Barr must always   file a motion for a change of venue to the U.S. District Court for the District of Columbia.  Readers will be familiar with changes of venue requests in famous criminal cases.  But this is different.   This is not about whether a criminal defendant can get a fair trial due to pre-trial publicity.

A change of venue in a civil dispute is based upon other considerations:  Where are all the witnesses?  Where are the records and evidence kept?  Where was the decision made?  Where are the decision-makers to be affected by the lawsuit located?  Those venue rules strongly if not conclusively favor moving any such lawsuit to the District of Columbia, where the decisions were made, where the officials and witnesses reside, and where all the evidence is located.

Again, those are the standard, currently-existing, non-controversial rules.  None of these lawsuits should be tolerated out in the Ninth Circuit on the Left Coast.  There is no valid reason to have such lawsuits spread around the country instead of being held in Washington, D.C., where the action is — and where the action took place.