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
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