President Trump lost another court decision regarding his
border wall on Friday. Actually, the decision regarding the wall was only one
of five court decisions that the president lost that day, but the ruling against
the use of presidential emergency powers to get around congressional opposition
is a singularly important one for the rule of law and the Constitution.
In West Texas, U.S. District Judge David Briones, a Clinton
appointee, ruled that Donald Trump’s attempt to reprogram money appropriated by
Congress for other purposes toward building a border wall was “unlawful.”
Briones
wrote that the 2019 omnibus spending bill specifically allocated $1.375
billion for border fencing and limited construction to the “Rio Grande Valley
sector” of Texas.
“The Congressional language in the [bill] reveals Congress’s
intent to limit the border barrier funding,”
Briones
wrote, adding “the plain text of the CAA [Consolidated Appropriations Act]
restricts the amount and location of funding for border barrier construction,”
prohibiting the president from diverting money earmarked for military construction
and counterdrug operations to the wall.
Stuart Gerson, a former DOJ official from the first Bush
Administration applauded the ruling, telling
Politico,
“As someone who served in government under a Republican administration, I never
imagined a Republican president would attempt to expand executive power this
far by overriding the appropriations power that belongs to Congress.”
“I hope today’s ruling will prompt Republicans in Washington
to recommit to the checks and balances that have defined our Republic and
protected our freedom,” Gerson added.
In reality, the fight to preserve congressional budgetary
authority is not over. The next step for Judge Briones is to allow both sides
to argue the scope of an injunction against using the reprogrammed funds and
the Trump Administration is certain to appeal. In July, the
Supreme
Court dismissed a similar injunction but did not rule on the merits of a
separate case challenging Trump’s wall construction.
Elsewhere, three separate federal courts ruled against the
Trump Administration’s “
public
charge” rule that makes it more difficult for immigrants who might need
public assistance to get green cards. Judges in New York, California, and Washington
issued injunctions that stopped the Department of Homeland Security from enforcing
the rule.
In Washington, U.S. District Judge
Rosanna
Malouf Peterson, an Obama appointee, ruled that the government had "not
cited any statute, legislative history, or other resource that supports the
interpretation that Congress has delegated to DHS the authority to expand the
definition of who is inadmissible as a public charge or to define what benefits
undermine, rather than to promote, the stated goal of achieving
self-sufficiency." Two other judges, both appointed by Bill Clinton,
issued similar rulings.
Acting Director of US Citizenship and Immigration Services
Ken Cuccinelli argued in a statement that the rule, which exempted immigrants
who have been granted asylum, lawful permanent residents and refugees, merely
enforced current immigration law.
"The public charge regulation defines this law to
ensure those seeking to come or stay in the U.S. can successfully support
themselves financially and will not rely on public benefits as they seek
opportunity here,”
Cuccinelli
said.
Friday’s injunctions were based on the likelihood that the
plaintiffs suing the government would prevail but did not issue final decisions
in the cases. As with the case regarding Donald Trump’s emergency authority,
the final ruling is likely to be appealed to the Supreme Court.
Finally, the president also lost an appeal to overturn a
decision requiring that he comply with a House subpoena to provide his tax documents.
The US Court of Appeals for the District of Columbia Circuit ruled two to one
that the president must turn over eight years of accounting documents. Judges
appointed by Obama and Clinton comprised the majority while a Trump appointee
dissented.
"We detect no inherent constitutional flaw in laws
requiring presidents to publicly disclose certain financial information. And
that is enough,"
the
ruling stated.
Even though the five rulings fell along party lines, the evidence
that activist judges ruled against Donald Trump out of tribal allegiances is
slim in two of the three cases. The sole exception is the immigration cases,
which hinge on Section 212(a)(4) of the
Immigration
and Naturalization Act The INA states that “any alien who…
is likely at any time to become a public
charge is inadmissible.” As the
Immigrant
Legal Resource Center explains, the new policy reinterprets the vague
language of the law to change the standard from “assessing whether an applicant
is likely to become
primarily dependent [emphasis theirs] on the
government for income support” to redefine a “public charge as a person who
receives
any number of public benefits [emphasis mine] for more than an
aggregate of 12 months over any 36-month period of time.” This is a vastly more
restrictive policy, but it would seem to be within the bounds of bureaucratic
rulemaking.
When it comes to congressional subpoenas, however, the
Administration seems to be in the wrong. Neomi Rao, the dissenting Trump-appointed
judge, wrote, “The Constitution and our historical practice draw a consistent
line between the legislative and judicial powers of Congress. The majority
crosses this boundary for the first time by upholding this subpoena
investigating the illegal conduct of the President under the legislative power.”
However, the
Supreme
Court ruled in 1927 that Congress’ power to investigate is implicit. A
majority held, “In actual legislative practice power to secure needed
information by such means has long been treated as an attribute of the power to
legislate. It was so regarded in the British Parliament and in the Colonial
legislatures before the American Revolution; and a like view has prevailed and
been carried into effect in both houses of Congress and in most of the state
legislatures.” Republicans had no problem with congressional investigations
into the IRS, Solyndra, and Fast and Furious.
But it is President Trump’s attempt to use a national
emergency to subvert the express will of Congress that is the Administration’s
most egregious example of poor legal reasoning. As Republicans were fond of
pointing out during the Obama years, the Constitution explicitly gives the
power of the purse to the House of Representatives, which declined to give the
president the money that he requested for his wall. Congress’s decision to
reject the president’s request does not constitute a national emergency, especially
when the situation has been ongoing for decades, including two years of the
current Administration in which the current president
rejected
three deals for wall funding.
The national emergency not only defies the Constitution and
common sense, it also defies the
National
Emergencies Act, which does not give the president unlimited power. Even if
the emergency was genuine, Trump’s actions go beyond the limited power
delegated by Congress, such as the stipulation that the emergency “requires use
of the armed forces.”
A final ruling striking down Donald Trump’s abuse of
national emergency authority would not only be a good thing, it is vital to the
constitutional balance of powers. If all the president has to do to bend
Congress to his will is to find some dubious grounds to declare an emergency
then Congress becomes extraneous and unnecessary. We will have moved from a
constitutional republic to rule by presidential decree.
“Today’s ruling vindicates the Founders’ wisdom and confirms
that the president is not a king and that he cannot override Congress’s power
to decide how to appropriate funds,” Kristy Parker, a plaintiff’s attorney with
Protect Democracy said of the ruling on the border wall.
Here’s hoping that the constitutionalists on the Supreme Court
see it the same way.
