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.
Originally published on The Resurgent
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