July 27th, 2019 Trump Wins Victory On Wall At Constitution’s Expense

Yesterday, the Supreme Court ruled in a 5-4 decision to lift a stay by a lower court judge preventing President Donald Trump from reprogramming funds appropriated by Congress to build the wall. The decision will allow the president to use $2.5 billion in funds designated for defense spending to begin construction on about 100 miles of border wall. Republicans applauded the decision, but the blows being struck against the Constitution’s balance of powers will have lasting consequences.

The ruling stems from President Trump’s decision to declare a national emergency on the southern border last February and move money appropriated by Congress for other purposes to the construction of the border wall. Under the president’s plan, $600 million from the Treasury Department’s forfeiture fund, $2.5 billion from Defense Department counter-narcotics activities, and $3.6 billion from military construction projects would be reprogrammed to finance construction of the wall. Friday’s ruling regards the $2.5 billion for the Defense Department, which Trump had designated for fencing in Arizona, California, and New Mexico.

Plaintiffs in the case were a group of environmental groups led by the Sierra Club and represented by the ACLU. The groups argued that they had “recreational and aesthetic interests” such as “hiking, birdwatching, [and] photography” in areas near the border. In June, a federal judge appointed by Barack Obama agreed and blocked the transfer of funds. Earlier this month, a three-judge panel from the Ninth Circuit upheld that decision in a two-to-one vote, noting that Congress had appropriated $1.375 billion for border barriers, rather than the $5.7 billion requested by the president. In the court’s view, that meant that the $2.5 billion had been “denied by the Congress.”

“As for the public interest, we conclude that it is best served by respecting the Constitution’s assignment of the power of the purse to Congress, and by deferring to Congress’s understanding of the public interest as reflected in its repeated denial of more funding for border barrier construction,” Judge Michelle Friedland, an Obama appointee, wrote for the court.

The Trump Administration appealed the stay to the Supreme Court, which ruled on Friday, that, “The government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review.” This means that the injunction preventing the Trump Administration from spending the reprogrammed $2.5 billion is lifted and the case returns to the lower court.

The Supreme Court’s five conservatives voted to lift the stay while Justices Ginsburg, Kagan, and Sotomayor dissented. Justice Stephen Breyer proposed a compromise in which the government could negotiate contracts but not actually spend the reprogrammed money until the case was fully decided.

While the ruling is understandably being celebrated by Republicans, the decision, along with another June decision by a different federal court, puts the judicial thumb firmly on the executive branch’s side of the scale that represents the balance of federal power. In the June decision, a Trump-appointed judge rejected a similar lawsuit by House Democrats, arguing that the national emergency spending represented a political dispute that was outside his authority to decide.

The fundamental problem is that courts are tying the hands of Congress in the face of abuses of executive authority. President Trump moved the funds under a federal statute that allows money to be reallocated to address “unforeseen needs” that have not been “denied by the Congress.” In the case of the border wall, neither condition applies. The problem of illegal immigration is hardly unforeseen, having been a hot button issue for more than a decade. The question of the border wall is one that has been repeatedly considered and denied by Congress. In fact, Trump’s national emergency declaration came immediately after the government shutdown in which he demanded unsuccessfully that Congress appropriate money for the wall.

As Republicans were fond of noting during the Obama era, the Constitution gives the House of Representatives the power of the federal purse. If federal courts refuse to rein in an executive that flouts the rule of law in order to bypass an uncooperative Congress, then the constitutional power of Congress is weakened and the president, already much more powerful than the Framers envisioned, becomes even stronger and less accountable. If the courts won’t uphold the constitutional role of Congress in the appropriation of funds then impeachment may be Congress’ only weapon against an out-of-control executive branch.

The judicial battle over national emergency funding for the border wall is not over yet, however. The Sierra Club case will now go back to the lower court to be decided. House Democrats are also appealing the lower court ruling in their own lawsuit against the president’s transfer of funds. It is entirely possible that one or both cases will return to the Supreme Court for a ruling on the question of whether using a national emergency to bypass congressional appropriations is constitutional, rather than the technical question of whether plaintiffs have the legal standing to sue.  

The idea that a border wall is the answer to the illegal immigration problem has become an article of faith on the right. Personally, I have my doubts about whether a barrier along the border would be as practical or effective as its proponents claim (click here for details). However, the legal question that needs to be answered is not whether a wall is a good idea but whether the president can unilaterally transfer funds appropriated by Congress to programs that were specifically rejected by Congress.

For Republicans to back the president on that question is to support a broad expansion of executive power at the expense of Congress. Backing that expansion confirms that Republicans are not a small government party of constitutionalists but a party that favors big government solutions when they come from the right. With many new Trump appointees on the bench, it is entirely possible that Republicans may get their wall over the objections of Congress, but the expansion of presidential power may come back to bite them.

Originally published on The Resurgent