Legitimate lawsuit or political posturing?

The big news last week was the lawsuit filed by California and 15 other states challenging President Trump’s declaration of an emergency related to border security and the building of a physical barrier on the southern border. The reaction was a great deal of political hyperventilating from both sides of the political spectrum.

So, after everyone has taken a breath, what should rational taxpayers think about this lawsuit and the dozens of other lawsuits filed by California against the Trump administration?

Let’s stipulate that there are times when litigation is appropriate between states and the federal government. The United States is a constitutional republic with a political structure based on federalism. Brilliantly, our founding fathers (with some intellectual help from our founding mothers, no doubt) devised a system of divided government. Not only was the federal power divided into three branches, but substantial political power was reserved to the states via the Tenth Amendment.

Controversies between the federal government and the states have been bitter and, when one considers the Civil War, they’ve been violent as well. Fortunately, modern disputes between the federal government and the states involve lawyers, not bullets.

During the Obama administration, it was the conservative state of Texas that filed numerous lawsuits against the federal government. Then Attorney General Ken Paxton was quoted as saying “I get up in the morning and I sue the federal government.” Now, of course, the shoe is on the other foot. It is progressive California that has either filed or participated in more than forty lawsuits against the Trump administration for what it is claimed are violations of the either federal law or the U.S. Constitution. As one would expect, these lawsuits come with a lot of bravado from politicians. (California’s Gov. Gavin Newsom saying in a press conference, “We’ll see you in court.”)

But bravado is one thing. Let’s discuss the legal merits. The first hurdle California has in this or any lawsuit against the feds is “standing.” Under the doctrine of standing, the person or entity bringing the action has to show injury in fact. It is not enough that a person is merely interested as a member of the general public in the resolution of the dispute. For example, a recent lawsuit against the Trump administration for withdrawing from the Paris Climate Change accords was rejected on standing.

Another hurdle for California in the border security case is that matters of national security – of which border security is a subset – are squarely under the purview of the federal government. While California might want to have its own foreign policy, its powers in this regard are strictly constrained.

In assessing the wisdom of any legal action, there are several other considerations including whether any specific ruling from a court actually constitutes a “victory.” A temporary restraining order from a single federal district court judge might make for good headlines, but it is not a final judgment. Even when a case has been resolved at the trial court level, the associated appeals could take years.

And then there is forum shopping; the practice of picking a court where it is anticipated by the plaintiffs bringing the action that they will get a sympathetic judge. Only the most naïve person believes that judges don’t come with their own biases and political views. President Trump correctly predicted that the lawsuit challenging his emergency declaration would be brought in the Ninth Circuit Court of Appeals, a notoriously liberal court that is reversed by the U.S. Supreme Court more than any other circuit.

For California taxpayers, there is another consideration. Lawsuits cost money. The dozens of civil service attorneys under Becerra are well paid. Is this really the best use of their time? More troubling is the fact that these politically charged lawsuits often employ outside law firms, which are even more expensive.

While California is well within its rights to sue the federal government over legitimate claims, many of the legal actions brought by our Attorney General constitute little more than political posturing. As evidence, shortly after the lawsuit was filed, Becerra emailed out a political solicitation asking for campaign contributions. While not illegal, there is something unseemly about having California’s top law enforcement official spending millions of taxpayer dollars on questionable lawsuits at the same time he is citing those lawsuits as a reason to send him campaign dollars.

Jon Coupal is president of the Howard Jarvis Taxpayers Association