Thread by @marty_lederman

1/ I understand the rhetorical and political value of asserting that Trump's "emergency" declaration is unconstitutional, but the pending suits aren't really about constitutional disputes, no matter how they're styled.

2/ AFAIK Trump isn't claiming any Art. II authority to act without statutory authorization, let alone to disregard a statutory obligation or constraint: He's merely arguing that he has statutory authority to build Wall/Fence.

3/ When many critics asserted that the Obama Administration acted unconstitutionally when it asserted the power to promulgate DAPA under the INA, that was a category mistake (or a canard)--see my posts below.

balkin.blogspot.com/2014/11/dispel…

balkin.blogspot.com/2016/01/two-mo…

4/ Likewise, it was a fundamental category error to assert (as Judge Collyer and others did) that the Treasury Department violated the Appropriations Clause when it made cost-sharing payments to insurance companies (see my brief below).

justsecurity.org/wp-content/upl…

5/ What we had in those cases, and this one, are simple, common disagreements about how to construe statutes--disagreements of the sort that the political branches have had since the beginning of the Republic (esp. w/r/t the meaning of appropriations statutes).

6/ If Trump is right that the statutes authorize the payments, then all sides agree that his Administration can shell out the $$. And if he's wrong--if the statutes don't authorize the payments--then all parties, including Trump (so far, anyway), agree that they can't be made.

7/ To the extent Trump is making bad-faith arguments, he might be violating his oath and/or his Take Care duty, but there's no Appropriations Clause or Separation-of-Powers violation at issue here.

8/ To similar effect, see @dorfonlaw.

dorfonlaw.org/2019/02/is-tru…