Border wall

Federal Court Rules Trump Cannot Use Defense Funds to Build Border Wall

The first court decision on Trump's plan to reallocate federal funds to "build the wall" goes against the administration.

|The Volokh Conspiracy |

On Friday night, Federal District Judge Haywood Gilliam ruled against the administration in what is likely to be the first of many court decisions on the legality of President Trump's plans to reallocate federal defense and and drug interdiction funds to build his border wall. The court concluded that none of the the federal laws that the administration wants to use to reallocate funds for wall construction in California actually permits it to spend more money on the wall than Congress specifically authorized for that purpose. Judge Gilliam also emphasized that the administration's attempts to circumvent Congress' power of the purse threaten to undermine our constitutional system of separation of powers.

In order to build parts of Trump's planned border wall, the administration wants to reallocate funds under 10 USC Section 284, which allows the use of Department of Defense "counternarcotics" funds to provide support for "counterdrug activities" by other agencies, and 10 USC Section 2808, which applies  during a "national emergency" that "requires the use of the armed forces"  an allows the president to reallocate defense funds to "undertake military construction projects … that are necessary to support such use of the armed forces." In order to make use of Section 2808, Trump declared a "national emergency" under the National Emergencies Act of 1976.

Since the funds Congress specifically allocated to fund Section 284 during the current fiscal year are nearly exhausted, the Department of Defense wants to tap some $2.5 billion in additional funds by using Section 8005 of the most recent Department of Defense Appropriations Act. As Judge Gilliam explains, Section 8005 "authorizes the Secretary of Defense to transfer up to $4 billion 'of working capital funds of the Department of Defense or funds made available in this Act to the Department of Defense for military functions Section 8005 further provides that such authority to transfer may only be used (1) for higher priority items than those for which originally appropriated, and (2) based on unforeseen military requirements, but (3) in no case where the item for which funds are requested has been denied by the Congress." The federal government also plans to utilize some $3.6 billion under Section 2808. This combined total is far more than the $1.375 billion that Congress authorized in new border barrier spending in the deal that ended the government shutdown earlier this year.

For reasons Judge Gilliam outlines, neither Section 2808 nor the combination of Section 284 and Section 8005 actually authorize the president to spend money on border barriers. Moreover, the administration's efforts to tap these funds would seriously undermine the separation of powers of the courts allow them to succeed.

In his opinion, Judge Gilliam concludes that the administration's attempt to use Section 8005 runs afoul of two of that provisions' requirements: that the expenditure in question cannot be for a purpose "denied by Congress", and that it must be for  "unforeseen military requirements."

As Judge Gilliam points out, "the Defendants' argument that the need for the requested border barrier construction funding was "unforeseen" cannot logically be squared with the Administration's multiple requests for funding for exactly that purpose dating back to at least early 2018." Trump has been lobbying Congress for extensive new border wall funding for a long time now. Their refusal to satisfy his demands does not make the wall an "unforeseen" military need. He notes that if the administration prevails on this issue, virtually any Section 284 spending could qualify as as an "unforeseen" need, based on the theory that the need for  the spending was not known until the administration demanded it.

The administration's position on the "denied by Congress" issue is perhaps even more troubling. Judge Gilliam's ruling explains that the administration's demands for new border wall spending beyond the $1.375 billion included in the recent budget deal, were repeatedly rejected by Congress. This surely qualifies as a "denial" by Congress. The administration's attempts to get around this problem pose a serious threat to the separation of powers:

[T]he upshot of Defendants' argument is that the Acting Secretary of Defense is authorized to use Section 8005 to funnel an additional $1 billion to the Section 284 account for border barrier construction, notwithstanding that (1) Congress decided to appropriate only $1.375 billion for that purpose; (2) Congress's total fiscal year 2019 appropriation available under Section 284 for "[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States" was $517 million, much of which already has been spent; and (3) Defendants have acknowledged that the Administration considered reprogramming funds for border barrier construction even before the President signed into law Congress's $1.375 billion appropriation….

Put differently, according to Defendants, Section 8005 authorizes the Acting Secretary of Defense to essentially triple—or quintuple, when considering the recent additional $1.5 billion reprogramming—the amount Congress allocated to this account for these purposes, notwithstanding Congress's recent and clear actions in passing the CAA, and the relevant committees' express disapproval of the proposed reprogramming….

[R]eading Section 8005 to permit this massive redirection of funds under these circumstances likely would amount to an "unbounded authorization for Defendants to rewrite the federal budget…"

Judge Gilliam goes on to emphasize that:

The Court has serious concerns with Defendants' theory of appropriations law, which presumes that the Executive Branch can exercise spending authority unless Congress explicitly restricts such authority by statute…. But it is not Congress's burden to prohibit the Executive from spending the Nation's funds: it is the Executive's burden to show that its desired use of those funds was "affirmatively approved by Congress…

To have this any other way would deprive Congress of its absolute control over the power of the purse, "one of the most important authorities allocated to Congress in the Constitution's 'necessary partition of power among the several departments.'"… (quoting The Federalist No. 51, at 320 (James Madison)..).

On Section 2808, Judge Gilliam concludes that "it is unclear how border barrier construction could reasonably constitute a 'military construction project' such that Defendants' invocation of Section 2808 would be lawful." For reasons he explains, such border barriers do not qualify as a "military construction projects" as that term is defined in Section 2801 (which provides relevant definitions for 2808).

I pointed out some additional reasons why the administration's reliance on Section 2808 is flawed here. Among other things, immigration law enforcement does not qualify as an "emergency" that "requires the use of the armed forces." Indeed, using the armed forces for domestic law enforcement purposes is actually illegal.

Because the administration has not yet decided when and where it intends to use the Section 2808 funds, Judge Gilliam only issued a preliminary injunction against the use of Section 8005/Section 284 funds.

The bottom line in this case is that the president does not have the power to spend money for purposes not authorized by Congress, and he cannot circumvent Congress' power of the purse through creative manipulation of statues. As Judge Gilliam puts it, "Congress's 'absolute' control over federal expenditures—even when that control may frustrate the desires of the Executive Branch regarding initiatives it views as important—is not a bug in our constitutional system. It is a feature of that system, and an essential one."

This is not the first time the Trump Administration infringed on Congress' power of the purse. It has repeatedly done much the same thing in its efforts to withhold federal funds from "sanctuary cities," a strategy that has led to a long series of well-deserved defeats in court.

Judge Gilliam's decision only deals with the plaintiffs' motion for a preliminary injunction. But it is obvious which way he is likely to rule once the case reaches a final decision on the merits. In addressing the preliminary injunction question, he concluded that the plaintiffs are likely to prevail on the merits on both the Section 2808 and Section 8005/Section 284 issues.

Yesterday's ruling is just the beginning of what is likely to be a prolonged legal battle over Trump's efforts to reallocate funds to "build the wall." This case, filed by the ACLU on behalf of the Sierra Club and other groups, is just one of many lawsuits against the president's plan. It is the first to result in a judicial decision. There will likely be many more before this

Judge Gilliam does not address a number of issues that are likely to be dealt with in other cases, or perhaps even in this one, after the federal government files an appeal. These include whether the situation at the border qualifies as "national emergency" under the National Emergencies Act of 1976 (whose invocation was necessary to trigger Section 2808), and whether the president has the authority to use eminent domain to seize property for border wall construction not specifically authorized by Congress. Yesterday's ruling did not need to address these issues because Judge Gilliam concluded that the use of Section 2808 was illegal for other reasons, and because the administration has not yet tried to use the new funds to condemn property in the areas in question. Similarly, the ruling does not consider the legality of the administration's plan use federal asset forfeiture funds to build the wall, relying on 31 USC 9705. The Administration intends to use Section 9705 to fund wall construction in Texas, but in areas not covered by the lawsuit before Judge Gilliam.

As Winston Churchill might have put it, this ruling is not the end of the legal struggle over Trump's border wall; it barely even qualifies as the end of the beginning. But Judge Gilliam's decision is still a notable victory for opponents of the wall. It effectively highlights some key flaws in the administration's position.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

268 responses to “Federal Court Rules Trump Cannot Use Defense Funds to Build Border Wall

  1. Another “but Trump!” decision by a non-white Obama appointee. Yawn. Nothing to see here.

    1. If you agree with the ruling, what relevance is it that the judge is non-white and an Obama appointee? Or are you just mad that you didn’t get into Yale and Stanford Law?

      1. Because the ruling was in bad faith. And I didn’t apply to Yale or Stanford. But getting in as a black is not impressive. A white has to have at least a 172 to get in to either, whereas a black with a 160 can easily get in.

        I got a 176.

        1. If it was correct, how was it in bad faith? Should he have given an incorrect ruling just to make you feel better?

          1. It’s in bad faith because he doesn’t actually believe in the principle on which he claims this ruling is based.

            1. By “principle” you mean the wording of the three statutes in question?

              1. You are attempting to reason with a guy who believes women should be forbidden to vote, who is pining for a race war, who often lurches into tangential rants about ‘throbbing male members,’ and is a prominent member of the Volokh Conspiracy’s carefully cultivated right-wing follwing.

        2. “I got a 176.”

          76, I’d actually believe.

      2. So what you’re saying, is that you’re a racist.

        Good to know.

        1. Racist, and not shy about it.

    2. Yawn. Activist judge. Will be overturned.

  2. Judge Gilliam, appointed by Obama. No doubt a fair and impartial ruling – strictly on the law and merits, for sure.

    1. I actually agree with the ruling as a matter of principle. But I have no doubt that Gillam’s lofty references to separation of powers would take a back seat if Obama had, say, used general HHS funds to pay for PrEP drugs for gay men, or if he had used general education funds to pay for grants to teach BLM type propaganda, even if in each case Congress had voted no.

      1. He does make a lot of good points about the limits of the sections the Administration is trying to use to justify these expenses.

        On the other hand, I find his dismissal of border security as a non-military manner to be both reaching far out of his expertise and in direct contrast to even a cursory understanding of military history.

        The security of borders has been one of the primary purposes of the military throughout history. Denying that draws into question all of his other arguments.

        1. When I said I agreed in principle, I meant that I think the Constitution should be followed closely. That said, this “judge” has on intent on reining in any level of government out of any desire to follow the Constitution. He just wants to stop Trump. He’s part of the “#resistance.” The moment a Demoncrap gets into office, and suddenly he’ll be writing about the enormous latitude the executive gets in these instances.

          1. And the Republican judges will be taking over judgement for executive branch rationalizations by the Democratic presidents.

            “Go ahead, Doctor Jones. Blow it up! We are merely traveling through history. This…this is history!”

            (Doctor Jones ponders for a moment then blows up the Constitution Ark.)

        2. Rather than looking at the Judge’s dismissal of border security as a military matter, why not look at Trump using the United States military as toy soldiers for political gain?

          Recall just before the midterms: There was a caravan of men, women and children moving slowly on-foot up through Central American. This had occurred before and the result would be the same this time : The crowd would thin as it moved north; it would approach the border numbering in the hundreds to apply for asylum; U.S. border security would handle the situation. But this time was an election, so instead :

          1. Trump claimed that “criminals and unknown Middle Easterners are mixed” in with the group. There was no evidence of this, then or now.

          2. Trump claimed it was “actually mostly men” who were “pushing the few kids right up to the front”. This was pure lying.

          3. Trump said, “You look at that, it almost looks like an invasion. . I think it could be considered an invasion of our country”. This was either delusional panic or still more lying.

          4. Trump said he “wouldn’t be surprised” if George Soros was funding the caravan. This was either stomach-churning pandering or stomach-churning paranoid delusion, one or the other.

          5. Trump gave a speech bragging, “They want to throw rocks at our military, our military fights back,” he said. “I told them, consider it a rifle.” Having been in the military, I can assure you military commanders down the chain of command did not appreciate his juvenile crap.

          So Trump sent 6,000 troops and promised 10k more. For form’s sake, Defense Secretary James Mattis said, “We don’t do stunts in this department” before acting as stunt coordinator. The Army commander overseeing the mission began drawing-down his troops just after the election, even before the refugees reached the U.S. port of entry near Tijuana. Trump, of course, stopped mentioning the “invasion” caravan immediately after the voting ended.

          It was a cartoon spectacle worthy of a banana republic. Who’s “understanding of military history” would you trust, Federal District Judge Haywood Gilliam or Donald John Trump?

          1. Hi, Apple, meet Orange.

            The judge dismissed thousands of years of military history as part of his legal ruling. Not as part of a political campaign, or during a speech. He made claims of fact, and demanded that they be enforced – only he is blatantly wrong.

          2. Sorry, Toranth, but you’re confused over your apple/oranges and my example was on point. Go look up the The Posse Comitatus Act, which limits the powers of the federal government to use federal military personnel to enforce domestic policies within the United States. It dates from 1878, but represents a bedrock principle of federalism which long predated that.

            It has exemptions, such as those which allowed Eisenhower to call up military forces when state authorities refused to suppress violence against people exercising their constitutional rights. And it’s been modified – such as in 2006, with the provision that “armed forces could restore public order and enforce laws in the aftermath of a natural disaster, terrorist attack or incident, or other condition”.

            But almost everyone agrees – regardless of their ideology : The United States military should be involved in enforcing this country’s domestic laws to the absolute minimum possible extent and degree. Immigration enforcement is a matter of domestic law, executed by domestic law enforcement. Migrants and the so-called caravans are NOT invasions, despite Trump’s tin-horn third-world-grade theatrics. Sorry, Toranth, but even you can’t make a heroic battle from a few hundred ragged men, women and children on foot – your sepia-colored nostalgia notwithstanding.

            They are the purview of domestic enforcement agencies, exactly as Judge Haywood Gilliam said. Since you’re swimming in confusion about this, let me assure you Gilliam would welcome military action when Mexico sends tanks across the border. But that’s not what we’re discussing, is it?

            1. The returning, victorious general’s army shall remain outside of Rome.

            2. The caravans ARE “invasions”, they’re merely not military invasions,

              1. Invasions don’t ask for asylum.

                1. Actually, many of the “barbarian” tribes who migrated into Roman territory, especially across the Danube, sought permission to do so. But that is beside the point.

            3. Again, guarding the borders is a standard function of the military around the world, and throughout history. Denying this is an absurdity, a delusional position that brings into question any other argument you make because it is so wrong.

              Second, the apples to oranges comparison I made that you failed to understand is the difference between a POLITICAL CAMPAIGN SPEECH and a LEGAL RULING. These are not the same thing and, again, claiming that they are is so delusional that it brings everything else you say into question.

              1. We passed a law ensuring we were not like a lot of other countries in your use of the military. No amount if caps lock or calling those disagreeing with you delusional changes our law.

                1. Error! Assumes facts not in evidence, plus is irrelevant to the discussion at hand.

                  Reread the post, and try again. This time, with a rational argument.

                  1. DMN deals with the argument as well below, but your appeal to ‘what is a standard function’ isn’t actually a statutory argument. It’s also not an argument Trump has made.

        3. “The security of borders has been one of the primary purposes of the military throughout history.”

          The Founders thought we could defend our borders without a standing army at all.

          1. You mean the same Founders that commissioned and funded the First American Regiment to guard the western borders of the United States against Indians? And the West Point fortress, artillery park, and Military Academy?
            Of course, it did take until all of 1791 until more regiments were created.

            The US Army has had thousands of men serving in it continuously since the Revolutionary War. Even in peacetime, there were regiments guarding the borders – all in addition to the thousands of state militia who did that same job (4000 in Virginia alone in 1811). The United States has never in its history been without a US Army.

            1. I was thinking more along the lines of the Founders who wrote a prohibition against Congress appropriating more than one year of funding for the Army, and added the Second Amendment to protect the existence of the militia. But yeah, those guys were around at the same time, too.

        4. The security of borders has been one of the primary purposes of the military throughout history. Denying that draws into question all of his other arguments.

          Setting aside the validity of the appeal to tradition — throughout history, the security of the ruling class against the population has been one of the primary purposes of the military — the security of borders against military incursion has been one of those primary purposes. Not against individual migrants.

          1. Against military incursion… and smuggling. and banditry, and to collect taxes or tariffs, for just a few additional examples.

            1. Which has nothing to do with asylum seekers or other migrants.

              Trump-worship rots its viewers’ brains, though those who succumb weren’t too bright to begin with

          2. There are a few places that have used their military forces at hte border in the way you imagine. East Germany at the Berlin Wall, North (and South) Korea at he DMZ.

            What isn’t clear is why you want to emulate these examples here in America.

            1. Do you know what the Coast Guard is?

              Of course, there’s also military border controls in place in countries like Poland, Ireland, Turkey, Egypt, Israel, India, Mexico, Brazil… If you count history, then – again – almost every country did it. The invention of a “non-military” group of heavily armed people that patrol borders is quite modern.

              1. You are arguing against a longstanding American law. Until you get that repealed, all your policy arguments stand for nothing.
                Except maybe ignoring the rule of law in favor of your preferred policies.

      2. Or if Obama had decided to create entire new program for illegals and affirmatively grant them benefits and issue them permits.

        Or if Obama had decided to make billions in risk corridor payments that Congress didn’t appropriate.

        We can’t tolerate a system with two clearly different definitions of justice.

    2. Are you arguing that an ongoing occurrence that Trump had been publicly complaining about for four years, and that he specifically requested funding for that Congress didn’t allocate, and that he specifically discussed reappropriating funds to address if Congress didn’t allocate them, was “unforeseen”?

      Or are you arguing that our southern border is a military “base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a military department”?

      1. Actually, the truth is even more sordid. The “Build a Wall” shtick was a great presidential campaign applause line, particularly since Mexico was going to pay for it. But post-election wall talk was more infrequent, being no longer needed for crowd yuks. Successive budgets came and went with Congress refusing to fund a joke line, and Trump just shrugged his shoulders with indifference. In late 2018, he announced agreement to a budget reconciliation bill with all his customary bombast. But what followed was an afternoon/evening of flaming anger by toxic Right infotainment types like Coulter, Ingraham, and Limbaugh.

        That was enough. Within 24hrs he reversed his “position” a full 180 degrees and refused to support the budget bill he just praised. Then came the longest shutdown in history – over a wall ignored the first half of his presidency. Congress refused to fund the wall to bring the shutdown to a close, and refused to fund the wall in the negotiations which followed. This resulted in the phony emergency declaration.

        So Trump trashes the constitutional principle of congressional appropriations authority and all his lickspittles applaud. But this institutional damage isn’t over an emergency, or even an imaginary emergency. It’s because Trump feared the docile sheep comprising his political base were restless, and he wildly panicked.

        And we have to make critical constitutional law from that, a weak-willed man’s blind panic…..

        1. I wonder how often you commented on Obama’s trashing Constitutional principles. I would guess not often.

          1. Now, is your assumption based on the fact that when Obama did it, this other commenter didn’t object? Or are you just noting that Obama didn’t do it with the same frequency?

          2. I wonder how often you commented on Obama’s trashing Constitutional principles. I would guess not often.

            The last refuge of the Trump-worshipper.

    3. Meanwhile Judge McFadden, appointed by Trump, is himself motivated solely by the law and the merits, as he’s asserting (in the House’s case on exactly the same issue) that Congress’s only recourse, when the President ignores restrictions on his spending authority, is to pass another law. Somehow.

    4. A Judge who was appointed by Trump would be completely free of bias making a judgment involving the Trump administration in your world-view, right?

      Then, if the ruling still didn’t go ‘your way,’ you’d argue that the Judge had TDS and wasn’t a true Republican, or was part of the “Deep State.”

      1. “Deep State” means people who are loyal to the country instead of to the President.

  3. It’s amusing that the judge gave separation of powers as the reason for his ruling, when that is also the reason the president is free to disregard any court decision. Or am I reading too much into that?

    1. Courts, schmourts. Trump isn’t free to disregard the House of Representatives.

      How about while Trump relies on the Senate to protect him from impeachment, the House announces, “No more money for farm programs. No more money for corn ethanol. Defense appropriations will be permanently reduced by the sum of all diverted appropriations. And no more money for buying planes for the air force, or for developing new ones.”

      How long do you think it would take to get enough Republicans to reconsider whether Republican President Pence might make more sense than Republican President Trump?

      1. “How long do you think it would take to get enough Republicans to reconsider whether Republican President Pence might make more sense than Republican President Trump?”

        There aren’t enough R’s in the House to impeach, and the D’s aren’t going to. Trump will run in 2020 on “waaa! The mean democrats won’t let me build a wall!” but will never answer the question “why didn’t you build it in the two years while your party controlled both houses of Congress?” because that question is “fake news” asked by reporters who work for failing news institutions.

      2. 80% of the government runs on autopilot and is unmoored from Congress.

        Who gives a shit about their petty threats when they outsourced their power to “independent” agencies long ago.

    2. The President is free to disregard court opinions, but the people who work for the President are not.

      1. “Here’s a pardon, have fun.”

        What could the Federal courts do in that case? Honest question – I’m assuming impeachment would follow quickly, but that’s a political act by the Congress, not the courts. DO the Courts actually have recourse?

        1. Are you suggesting a pardon prior to committing an offesne? How would that differ from a license for crime?

          1. Not quite what I’m asking. If these rulings go against Trump, and he has his administration go ahead and proceed with building the wall, I assume that they (the people doing the work up to the cabinet official) may be charged with crimes for this. I don’t know what crime – misuse of government funds? But I’m sure there’s something they could be charged with.

            If Trump then pardoned them, what recourse would the courts have? Would impeachment be the only possible resolution?

            1. “I’m sure there’s something they could be charged with.
              If Trump then pardoned them, what recourse would the courts have?”

              They can be charged when Trump is no longer President. President Warren’s AG might be quite aggressive in what the charge, and Mr. Trump can’t pardon anyone when he is ex-President Trump.

              1. Is there some way to “unpardon” someone? Because my understanding was that the pardon power was absolute, even when the individual hasn’t been charged yet (Nixon).

                1. But not so absolute as to apply to crimes not yet committed, right? Please?

                  1. The situation I’ve describe presumes that the people have already proceeded with building a wall in violation of court ruling.
                    That seems to describe a “crime” having already occurred.
                    Or are you suggesting that there is another, new, crime that they would be committing after that?

                2. “Is there some way to “unpardon” someone?”

                  You advocate for the President to ignore Court orders, and can’t conceive of the Court proceeding contrary to the President’s wishes?

                  1. I’m not sure that “He violated the Constitution, so we’re going to as well” is the best argument.

                    1. I’m not sure it’s a violation of the Constitution. The USSC can void statutes; maybe they can void pardons.

                      The key question is whether the rest of, well, everyone, sides with them or him.

        2. So you think this is a great idea?

          Just tell your people to break the law and promise them pardons?

          Has your Trump-worship rotted your brain?

          1. A pardon may be for unspecified crimes, and accepting it does not require admitting guilt (see Ford’s pardon of Nixon). I do not see any way it could apply to future crimes, but Trump could keep pardoning his henchmen every time someone sought an indictment until the wall was finished, and then issue one final blanket pardon.

            However, a pardon only applies to criminal laws. It won’t stop a civil suit for misappropriation of funds. You only have to find a person who was deprived of expected federal funding because the funds were diverted, and so unarguably has standing to sue. (A judge might find taxpayers don’t have standing just because the taxes they paid were stolen, but when you pull that much out of the federal budget, someone must have been injured financially.) And so the henchmen could be on the hook for billion$.

            But the outcome I would love to see is for this to be tied up in court for years until the wall is finished. Then the trial is scheduled for January 21, 2025 (the day after President Pence’s inauguration), with Trump added as the primary defendant. After a few weeks at trial, a judgment of over $15 billion is entered against Trump, et. al. Since this appears to exceed the combined wealth of all the defendants, the court issues orders to seize _all_ Trump assets. They even auction off Trump’s copyright to his own name, so he will thereafter have to be known professionally by an odd symbol, to be pronounced “The swindler formerly known as Donald Trump”.

            1. Mind you, after reviewing the Democratic hopefuls, I expect to be voting for Trump next year, unless there is no possibility that I and other small-l libertarians could swing Michigan’s electoral college votes from one major party to the other.

            2. Acceptance of a pardon does not require a separate admission of guilt, but as per Burdick when Nixon accepted his pardon his acceptance implied confession.

  4. 1. Standing?

    2. Appeal, and keep spending the money.

  5. “Indeed, using the armed forces for domestic law enforcement purposes is actually illegal.”
    There is an exception intended for use when civilian law enforcement has broken down, most recently used IIRC in the 1992 LA riots. An appalling bug in the Insurrection Act allows the President to decide unilaterally whether using the military for domestic law enforcement is necessary.

    1. Open borders can only transition to totalitarian socialism, otherwise the result is total chaos. National emergency or not?

  6. Why is a district judge in San Francisco telling the federal government what they can or can’t do in El Paso?

    1. Judge Gilliam was appointed by Obama – consequently he would never overreach, don’t you know?

    2. “Why is a district judge in San Francisco telling the federal government what they can or can’t do in El Paso?”

      Because we only have the one federal government, I guess.

      1. Still fail to see why a suit involving federal government construction projects in Yuma and El Paso is appropriate for a judge in the Northern District of California to hear. I guess Yuma is at least in the same federal circuit, but what’s the point in having a federal court system broken up into circuits and districts if you can just forum shop?

        1. The case is Sierra Club et al. v. Trump. The Sierra Club is headquartered in San Francisco, hence the name “Sierra Club.” Why shouldn’t they be able to bring suit in their home jurisdiction?

        2. “Still fail to see why a suit involving federal government construction projects in Yuma and El Paso is appropriate for a judge in the Northern District of California to hear”

          Because of the word “federal” in front of the word “judge”. (Feel free to bring in the ongoing discussion of whether or not a federal judge should be able to grant an injunction on the federal government outside their jurisdiction. But have more of an an idea what the argument is, before you do this.)

          1. “Feel free to bring in the ongoing discussion of whether or not a federal judge should be able to grant an injunction on the federal government outside their jurisdiction.”

            That’s literally what I was doing… hence the repeated references to the judge’s location and district.

            1. “That’s literally what I was doing”

              Should have kept reading.

              You would have gotten to the part that said ” have more of an an idea what the argument is, before you do this”

    3. Why is a district judge in San Francisco telling the federal government what they can or can’t do in El Paso?

      Because what the government wants to do in El Paso involves spending money from the Treasury that Congress hasn’t authorized. The case had nothing specifically to do with El Paso. It had to do with rules for spending federal money. It’s plainly a legitimate Constitutional issue.

  7. This is an opinion which “effectively highlights some key flaws in the administration’s position”? Is that some kind of legal jargon for a gross misapplication of legal standards? No standing, no violation of any statute, a complete failure to show irreparable harm entitling plaintiffs to the extraordinary relief of a preliminary injunction. More embarrassing judicial resistance. Do we really have to do a replay of the travel ban nonsense? Apparently so.

  8. On the whole, Prof. Volokh’s evaluation of Judge Gilliam’s decision, as well as the decision, seemed right to me. The situation at the Mexican border may, for the migrants and for DHS, be an emergency, but calling it a military emergency and using DoD appropriated funds to address it is a big stretch. It is, in any case, far from an emergency in its impact on people in the US near the Mexican border.

    President Trump failed to convince the Congress of the need for these funds, and now must (or should) resort to the bully pulpit the presidency gives him. It may be unfortunate for his cause, but he has over used that, through Twitter and other media, to the point it may have become ineffective.

    1. Prof Somin’s evaluation, not Prof Volokh’s. If Prof Volokh has TDS his medication is keeing it well under control.

      1. Well, something is stopping EV from criticizing Trump. It may be meds, or who knows?

  9. The border money is peanuts. Trump just promised farmers he will give them $30 billion, to defray the losses he inflicted on them with his trade war. Where does Trump think that money is coming from, a House appropriation?

    1. “Where does Trump think that money is coming from, a House appropriation?”

      To the seasoned observer, the fact that President Trump promised anything to anybody does not imply that President Trump has any plan to actually deliver He says it, and hopes somebody who works for him can make it happen, and that’s the end of his thought process on the subject. This is not a recent development… we’re still waiting for that “better healthcare system” law he was going to sign on day one.

  10. More government by lawsuit.

    If the Democrats win in 2020, I have a feeling they are going to regret this precedent, since there are a lot of less Progressive judges out there that Republican suits can be shopped to.

    1. Depends on whether or not the next Democratic President (whether in 2021 or whenever) wants to spend money Congress declines to appropriate.

      Seems to me, there have been plenty of times a D President wanted to spend money on something an R Congress didn’t want to pay for. Having trouble off the top of my head recalling a similar case where the D President went ahead and did it anyway. Anyone got some examples?

      1. No, but I can identify statutory authorities authorizing the use of funds for border construction. How about the 2019 DoD Appropriations Act and the John S. McCain National Defense Authorization Act? Nothing in the Consolidated Appropriations Act limits the ability of the ability of the President to rely upon other statutory authorities to fund border wall construction under an emergency declaration.

        1. MKE, the approps act has hard caps on what those funds can be used for.
          And changes in the uses of such funds needs permission from Congress.

          And the NDAA does not authorize a wall.

          1. Yeah, hard caps on the use of funds made available under THAT ACT. That does not limit the availability of funds available under other statutes. Point to any such limiting language. And 10 U.S.C. § 2808 authorizes “without regard to any other provision of law,… military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces.”

            1. And 10 U.S.C. § 2801 defines “military construction project” as construction “carried out with respect to a military installation,” with “military installation” defined as “a base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a military department.”

              You know, this was all laid out neatly in the opinion.

              1. Another error in the opinion (hard to keep track of them all). The president (not a district judge) has the discretion to determine when a national emergency requires the use of the armed forces and border barrier construction seems to be clearly within the scope of a military construction project.

                1. ” The president (not a district judge) has the discretion to determine when a national emergency requires the use of the armed forces”

                  The President is the commander-in-chief of the armed forces. This does not mean he doesn’t have to follow the law when directing them. What do you call it when a member of the military orders men under his command to commit illegal acts?

                    1. The same term applies whatever the illegal acts are.

                    2. So, to borrow your rhetoric, identify any illegal act by the President.

                    3. MKE, that’s the case. That’s what this opinion talks about. That’s what the post these comments are to talk about. Your begging the question over and over again does nothing but make you look dumb and angry on the Internet.

                    4. That’s your argument? I wasn’t expecting much but that’s fine. Although this garbage judicial resistance is irritating, it will make the eventually schadenfreude that much more enjoyable when this crap is ultimately reversed.

                    5. My argument is to refer to the opinion and the OP which address and discard the few weak arguments you keep repeating like they are trump cards over and over again.

                      Your response is to just count your chickens before they’ve hatched. A telling lack of engagement.

                      Your side may end up being having the Supreme Court rule in it’s favor, but your argument will never be validated, because it’s the very first argument everyone addresses and discards, but you refuse to read about that.

                      I also have faith that if the Supreme Court doesn’t rule in Trump’s favor, you will just declare them all incompetent and continue on in confusing your inch-deep analysis for a monopoly on truth.

                    6. “So, to borrow your rhetoric, identify any illegal act by the President.”

                      Marketing “Trump University”.

                    7. I bet you’re still angry because they flunked you out.

                    8. I lived in a state where claiming fake university degrees is actually a crime, so… no.

                  1. It must gall you looking into Mar a Lago from the outside, in your old van, knowing that they’re just never going to let you in.

              2. Moreover, no specific construction projects have yet been identified under sec. 2808 so how the bloody hell can any court say at this stage that the statute was violated?

                1. The court never claims to decide whether a national emergency has required the use of the armed forces; it only decides whether what the President has tried to do fits within the scope of his “emergency” authority under the statute, and explains why it does not.

                  As regards Section 2808, the Trump administration argued that it authorizes the construction of a wall along the U.S.-Mexico border, based on the argument that the “other activity” in “base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a military department” meant that the construction could be anywhere at all. The court rejected this argument, but didn’t actually issue an injunction under that Section, because as you note, “Defendants have not disclosed a plan for diverting funds under Section 2808 for border barrier construction.”

                  1. Don’t know what to say. The President clearly has the authority to reallocate funding from military construction projects made available through the national emergency declaration. The court is in error.

                    1. Clearly? Well that’s a great argument.

                    2. Seems pretty clear to me under 10 USC 2808(a):
                      “In the event of …the declaration by the President of a national emergency…the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces. Such projects may be undertaken only within the total amount of funds that have been appropriated for military construction, including funds appropriated for family housing, that have not been obligated.”

                      But if you prefer, we could just say the President obviously has authority.

                    3. So you think the wall is a military construction project?

                      And you think Congress has effectively delegated it’s entire DoD budget activity to the President via this act?

                      Your conclusion are not clear from the law; they are actually absurd results.

                    4. Yes, I think border barrier construction can reasonably come within the definition of a military construction project.

                      And, defining the wall as a military construction project does not mean that Congress has effectively delegated its entire DOD budget activity to the President. That make no sense at all.

                    5. “I think border barrier construction can reasonably come within the definition of a military construction project.”

                      I think “military construction project” implies constructing something that is to be used primarily, if not exclusively, by the military. (If not, what prevents the President from declaring an emergency, and diverting DOD appropriations to fund the building of course improvements at Mar-a-Lago?)

                    6. If the President may upon unreveiwable declaration of an emergency use an arbitrary amount of DoD funds to build whatever he wants under the unreveiwable declaration it’s military construction, the entire DoD budget is actually under the President’s control.

                      Which is what your cockamamie logic implies.

                    7. He’s not using an arbitrary amount to build whatever he wants. He’s using (or planning to use), among other sources, monies appropriated for military construction for military construction. If you’re trying to argue that border barriers constructed to defend this country cannot be defined as military construction, then you have a lot of history to argue against. Basically all of human history. But good luck with that.

                      And in response to Pollock (not sure if you’re naming yourself after the fish or Jackson Pollock), Donald Trump is the Commander in Chief so some future circumstance may in fact justify improvements at Mar a Lago that could properly be called military construction.

        2. “No, but I can identify statutory authorities authorizing the use of funds for border construction”

          It’s a shame whoever provided the President’s defense of this lawsuit couldn’t, then. Either you’re a better lawyer than they are, or you share the President’s ability to inflate his capabilities when speaking in public.

          1. That’s just plain ridiculous. An opinion issues that is so replete with legal error that it is a challenge just to cite them all and you think government counsel did not raise all possible defenses? Absurd. This crap will be reversed. Unfortunately it takes time.

            1. “Unfortunately, it takes time.”

              Not more than two years, clingers should hope.

            2. ” An opinion issues that is so replete with legal error that it is a challenge just to cite them all”

              Maybe start by finding one?

              1. No standing, no violation of any statute, a complete failure to show irreparable harm entitling plaintiffs to the extraordinary relief of a preliminary injunction.

                1. The irreparable harm is clearly established.

                  (This is how you argue, right? You state your conclusion, decline to offer evidence to support it, and ignore any legal proceeding that found other than what you prefer?)

                  1. One is spoiled for choice when discussing the many errors in this vomitous mass of legal error. But, as for irreparable harm, the plaintiffs have failed to establish that a LIKELY irreparable harm to their aesthetic or recreational interests will occur before the final disposition of the case. Their case is based on speculative harms, not concrete definitive threats. Moreover, the plaintiffs have don’t claim any deprivation of their personal constitutional rights and denying a preliminary injunction would not prevent them from pursuing any other constitutional claims. And plaintiffs have failed to show irreparable harm to their organizational mission. The possible border barrier construction does not interfere with their ability to pursue their organization’s policy goals.

                  2. But that’s just the tip of the error iceberg.

                    1. Psst. I think your iceberg melted while you weren’t looking.

                    2. That’s not really funny. I don’t blame you. The left is a notoriously humorless and witless batch. But still, I am a little disappointed if this is the best you can do,

      2. DACA

        Risk Corridor Payments

        Are two that I can think of.

        1. And now that I think about it how, what about the pallets full of cash sent to Iran? And wasn’t there a multi million dollar payment to some UN Climate Fund in furtherance of the Paris accord insanity? I’m sure there are many more examples.

          1. “what about the pallets full of cash sent to Iran?”

            You mean, Iran’s money?

            1. You mean, a small fraction of the money that Iran owed to the US for its seizure of property and harm to US entities? The money that has been held up pending arbitration and judgement before multiple international bodies because Iran refuses to participate? The money that Congress passed laws specifically denying the President the right to do anything with?

              That money?

              1. Whatever it was, it was not some cash payment to Iran like MKE puts it.

                And that money was not under any arbitration. It was frozen assets.

                No laws were broken in its release.

                1. It was pallets of cash (see 0:10). That’s… a cash payment.

                  That payment, plus the others, was in violation of the ITSR (Iranian sanctions) which strictly prohibited payments to Iran. There’s money laundering laws broken, because of the way the payments were made. There’s the laws against funding terrorist organizations or sponsors of terrorism. There was also a law protecting the claims of victims of Iranian terrorism.
                  And don’t forget that the “interest” portion of that payment was not allocated by Congress, and so was spent without any Congressional approval. Somewhat relevant here, no?

                  1. You better stop before there’s nothing left of Sarcastr0.

                  2. It was their money originally, MKE.

                    We ended those sanctions as part of our deal.

                    Do you know what payment means?

                    1. Do you even read any of the comments above? It’s like we’re going in circles.

                  3. “It was pallets of cash (see 0:10). That’s… a cash payment.”

                    You established that it was cash. But (oops, probably an oversight) you didn’t establish that it was a payment. If I give you something that is yours, it is not a payment.


                    1. Really? That’s seriously going to be your argument?

                      Payment (n): The act of paying someone
                      Pay (v): To give money for a debt incurred
                      Debt (n): Something (often money) that is owed or due

                      Even if your version of the events was 100% accurate, then the US would owe Iran the money, because the US took it but did not fulfill the contract. That means the debt would need to be paid, by means of a payment.

                      Seriously, that’s an argument that actually makes you look dumber than RAK.

                    2. Toranth, unfreezing assets isn’t a payment, because a payment requires an exchange. If the assets were not ours to do with as we pleased, it’s not a payment.

                      Whether the assets are cash or not is immaterial, but a telling indication of swallowing the propagandist’s optics over facts attitude.

                    3. You are confused over what actually happened. The “assets” – by which I mean the pallets of cash – sent to Iran were NOT something the US had just kept sitting in a warehouse since the mid 1970s. Unless you want to claim that the US had piles of Euros it received from Iran in the 1970s…? No?

                      So, the US was not “returning assets received from Iran” in any physical sense. Which means we’re only talking financially, here. And in financial terms, money sent in exchange for the cancellation of a debt is called a payment. In this case, the debt was for goods Iran ordered by did not receive – and Obama was paying off that debt.

                      Oh, that reminds me – The interest cannot in any way be called something “returned” to Iran, since Iran never had it in the first place. It was claimed to be something that the US owed Iran. So the US paid that debt (in cash).

                    4. So your argument is that all unfreezing of assets is a payment because money is fungible?!

                      As for interest on frozen assets not being part of said asset, you’re just making up law. It’s like finances 101 that frozen accounts continue to earn interest until they are unfrozen. Look it up.

                    5. “Seriously, that’s an argument that actually makes you look dumber than RAK.”

                      If pointing out mistakes in your argument makes me look “dumb” in your eyes, that’s the price I’ll have to pay.

          2. And now that I think about it how, what about the pallets full of cash sent to Iran?

            You mean a refund of money that Iran paid the US for stuff we didn’t deliver?

            Here is one explanation.

            But go ahead an believe the Fox/Limbaugh version because, hey, those guys are as honest as the day is long. Right?

            1. Try reading the above comments you idiot.

              1. Try getting the facts, you Trump-worshipping moron.

                Here’s a clue: don’t rely on Fox or Rush Limbaugh. They are lying to you, betting you’re too stupid to know it. So far that looks like a good bet.

                1. You are seriously citing Vox as a source, while attacking Fox and Limbaugh?

                  On top of that, you’re citing an article, sorry, a “card-stack” from Zack Beauchamp, a TinkProgess alum and an open anti-Semite that regularly publishes lies attacking Israel and supporting Iran. I suppose you couldn’t find anything from Fars, could you?

                  1. bernard says you’re not getting the whole story, and are probably relying on biased sources.

                    You respond with some bog-standard ad hominem and failure to engage his actual citations.

                    Kind of proving his point about your lack of curiosity about the truth versus your preferred narrative.

    2. It won’t matter. Republican appointees actually tend to apply laws instead of making it up as they go.

        1. No, they really do. As do all of them generally apply the law rather than flout it.

  11. Without bothering to go as far as the Judge’s actual judgement and relying on Prof Somin’s account, there seems to be a confusion here on :

    “where the item for which funds are requested has been denied by the Congress”

    with Somin morphing the “item” into the “purpose.”

    In any event this looks to be about whether Congress has denied funds for the item (or the purpose.) Not about whether Congress has voted funds for the item (or purpose) but less than the government would like to spend.

    That is the difference between taking a second eclair when you have been alloated only one; and taking an eclair when eclairs have been forbidden to you tout court.

    Mrs Moore would adopt Judge Gilliam’s conclusion, but she certainly wouldn’t be claiming her decision was based on an analysis of the text.

    1. Moore; I want ten eclairs.
      Mrs M: you may have 1, I deny you the other 9.
      Mr M: eats 10, claiming eclairs were never denied.

      Trump requests a 10 billion dollar wall, is denied such wall and allowed to do spend on a much smaller wall. Idealogues online twist themselves into knots to argue that Congress didn’t deny him a more expensive wall.

      1. Nothing in the recent appropriations act limits the ability of the Government to rely upon other statutory authorities to fund additional border-barrier construction. Point to any statutory language limiting access to other funding sources or in any way limiting the President’s authority to declare a national emergency. There is no such language.

        1. “Nothing in the recent appropriations act limits the ability of the Government to rely upon other statutory authorities to fund additional border-barrier construction.”

          You cling to this, so I hope it is providing you some comfort.

          1. Feel free to identify any such limiting language….

            1. Appropriations are enabling language, not limiting language. They do not enable a wall. Hence your argument is bunk.

              1. Not really sure what point you’re making. My point is that there is nothing in the Consolidated Appropriations Act (that’s a statute by the way) that limits the ability of the Government to rely upon other statutory authorities to fund additional border-barrier construction. Do you contending otherwise?

                1. You need both appropriation and authorization authority to reprogram funds.

                  Did you even read the OP? Why all the Section 8005 business?

                  1. You misunderstand what is happening here Sarcastr0. Any funds utilized for border-barrier construction pursuant to 2808 will be used for the purpose for which they were appropriated.

                  2. And why all the section 8005 business? Because Plaintiffs are trying to manufacturer some legal basis for their complaint by challenging DODs transfer of funds, although they have no standing to challenge the transfer of funding from one DoD appropriation to another.

                  3. And foreseeing your next asinine comment, the frivolous section 8005 arguments relate to the construction of fencing under § 284 using funds transferred under the authority of § 8005. This is distinct from their frivolous complaints under section 2808.

              2. No point arguing with MKE, Sarcastro.

                He’s one of the many Trump idolaters who comment here.

    2. Yeah. Denied by Congress has a very specific meaning. Congress will expressly deny the use of funds for specific purposes. When they do, that usage is denied by Congress.

      It doesn’t mean “not yet appropriated”.

      The judge is being transparently partisan with this nonsense.

  12. I see two problems with the opinion. First, discussion of the basis for standing is very weak. It is nonexistent in the standing section. The opinion there asserts the plaintiffs have an interest in the case without any supporting facts. Standing is first discussed in the irreparable injury section. The plaintiffs assert that their recreational interests in the area would be damaged. The opinion simply accepts this assertion at face value. It doesn’t even explain why they think this is so, let alone recite any evidence to support it. Similarly, it accepts the plaintiffs’ assertion they have organizational standing at face value. It doesn’t explain why the plaintiffs are compelled to initiate this litigation, as opposed to doing so voluntarily. Nor does it provide any evidence funds were actually diverted to do so. For all we know, taking on this case might have resulted in a net increase in their funding and benefitted rather than harmed them.

    A second weakness is it provided very little discussion of what is meant by terms like “emergency” and “unforeseeable.” I agree with the ultimate outcome. But in an important case like this, I think the court should have taken a more scholarly approach, canvassing a more comprehensive set of sources before concluding that these terms exclude the circumstances of the Administrations current conduct.

    In short, I think the opinion probably got it right. But it was just sloppy about critical issues in an area that really calls for the exercise of care. Before a judge enters into a showdown between Congress and the President, they should really take great care to ensure standing is established and there is a basis for the judiciary butting in. And matters of this nature really need to be decided in a deliberative, careful, and scholarly way.

  13. The rise of #Resistance judges will damage the reputation of the judiciary, perhaps irreparably. Obama’s executive proclamations are forever and can not be undone by executive proclamation (or, at least, not by THIS executive). Trump’s executive proclamations, on the other hand, are without effect. Oh, well, if it sticks a thumb in Trump’s eye, I guess it’s worth it. Chuck Schumer called Trump a “do-nothing president”, but the Left sure spends a lot of time in court trying to block a whole lot of “nothing”.

    1. The rise of seeing every time Trump loses in court as an example of judicial bias tells what the judicary means to some people.

      1. The Republicans are slow but learn to weaponize the tools used against them. Keep that in mind moving forward before you have a party.

        1. Yes, your side sees the judicary as a weapon – an instrument of spite and nothing more.

          Saying everyone who does anything you don’t like is just doing that out of bad faith isn’t recognizing some vast judicial weaponization, it’s just delegitimizing all who stand in your way.

          Maybe stop doing that, it’s screwing up our politics.

      2. The judiciary at this point means nothing to me. It has no credibility. I’d personally applaud if Trump ordered Special Forces to kidnap this “judge” and turn him into a Mississippi wind chime.

        1. “I’d personally applaud if Trump ordered Special Forces to kidnap this “judge” and turn him into a Mississippi wind chime.”

          Whereas, presumably, if he did it to you, patriots would weep.

      3. It means what the judges have made it mean. When judges put their thumb on the scales, there’s no justice. They should be ashamed of what they are doing. But zealots know no shame.

        1. You didn’t even ready the opinion. Don’t pretend you have any idea if the judge is fire before you declare him shameless.

          1. The opinions are post-hoc justification for partisan decisions. The arguments are selective, ignoring or hand waving away anything that doesn’t support the partisan choice already made.

            It was obvious in the “Muslim ban” (because “rational basis”). It seems obvious here, at least as it relates to funds “denied by Congress “.

            If they aren’t partisan, why do they keep getting it wrong the same way? Why do their decisions keep getting overturned the same way?

            1. Did you even read it? No – judge rules in way you don’t like, you decide he’s ruling in bad faith.

              ‘Seems obvious here.’ You’re letting your wishes write reality.

              And it wasn’t obvious about the Muslim ban either. Animus not being a doctrine is the law, but it’s not some retrospect easy case.

              If they aren’t partisan, why do they keep getting it wrong the same way? Why do their decisions keep getting overturned the same way?
              Why do judges keep ruling against Trump? Might there be some other explanation than massive bias across scores of previous professionals?
              As for the overturned, well, if they’re all overruling Trump, than those what get overruled…do the math.

              1. No, it actually was obvious with the travel ban. They weren’t going to decide they could undo anything or everything by saying the magic word “animus” and then pointing at some campaign speech quote and saying “see, he’s mean!” That would be one of the biggest (and most anti-democratic) power grabs by the courts since judicial review.

            2. Exactly. Tony the drunk Kennedy decided back in 2005 that a man penetrating another man’s anus was going to be protected come hell or high water, and after that, “marriage” licenses were soon to follow.

              1. Tony decided that it was ok for men to penetrate women’s anuses, too.

            3. “If they aren’t partisan, why do they keep getting it wrong the same way?”

              Confirmation bias, apparently.

            4. If they aren’t partisan, why do they keep getting it wrong the same way?

              Do you read your own comments? This is beyond hilarious.

  14. Heaven forbid we use defense money on a wall to defend the country.

    1. Whether you like the wall or not, if you want a republic worth defending you’d better get that wall via the methods specified in our republic not just by imperially insisting on it.

      1. Just like with mass immigration and sanctuary cities and DACA, right?

        Right?

        1. DACA wasn’t just ignoring Congress. Neither are sanctuary cities. And mass migration is just a lie.

          I know you see the world through an angry nativist lens, but try and stay on topic.

          1. Yes, they were. Congress didn’t give amnesty to the “dreamers” so Obama did it unilaterally. And how is mass migration a lie? How else do you think America went from 90% white in 1965 to 65% white today? Where do you think the 60 million low-IQ mestizos we have now came from?

            1. “Congress didn’t give amnesty to the “dreamers” so Obama did it unilaterally.”

              Yes, they did. By only allowing around 400K deportations, they granted amnesty to all the illegals who weren’t in the 400K selected for deportation. They ALSO didn’t specify how to select which 400K illegals get a deportation hearing, and which don’t, leaving that as an exercise of prosecutorial discretion. Mr. Obama inherited a system that prioritized deportation hearings for three classes: Illegals convicted of crimes, recent arrivals, and repeat deportees. Anybody in one of those classes goes to the front of the line for a deportation hearing, anyone not in one of those classes goes to the end.

              Remember when there was a surge of unaccompanied minors at the border? President Obama went to Congress and asked for authority to hold more deportation hearings to deal with the increase. The Republican-led Congress chose to ignore the request, not even holding a hearing on the matter.

              1. How does prosecutorial discretion create a program that affirmatively issues work permits and grants benefits?

                1. That program far preexisted Obama and its work permits and benefits were granted by several earlier Republican Presidents.

                2. “How does prosecutorial discretion create a program that affirmatively issues work permits and grants benefits?”

                  Smoke and mirrors, mostly. But the claim wasn’t that the DACA program didn’t issue work permits and grant benefits, the claim was the DACA didn’t grant immunity.

                  DACA did grant immunity (which comes from prosecutorial discretion) and work permits (which did not.)

                  1. Upthread, you suggested that a later President may charge Trump Admin members that build the wall in violation of this ruling.

                    However, if a Trump prosecutor chose not to charge them, then by this argument wouldn’t those people be immune from all further charges, since you’ve claimed that prosecutorial discretion not to charge now is the same as a permanent grant of immunity?

                    1. “Upthread, you suggested that a later President may charge Trump Admin members that build the wall in violation of this ruling.”

                      Yes.

                      “However, if a Trump prosecutor chose not to charge them, then by this argument wouldn’t those people be immune from all further charges”

                      You forgot to include any logic in your logical argument, here. By the argument that people can be charged later, that means that people can’t be charged later?

                      “you’ve claimed that prosecutorial discretion not to charge now is the same as a permanent grant of immunity?”

                      Is this a good time to point out that this is not an argument I have made?

                    2. Upthread, you argued that a President Warren (?!) could charge Trump Admin officials even if the Trump Administration declined to do so. You actually claimed she could do it despite a pardon, but I’m going to be nice and assume you were just confused.

                      Here, this this subthread, you argue that Trump cannot charge DACA recipients because the Obama Administration declined to charge them.

                      Please clarify your position, because these don’t match.

                    3. “Upthread, you argued that a President Warren (?!) could charge Trump Admin officials even if the Trump Administration declined to do so.”

                      Yes, I did. Allow me to add, for your benefit, DUH.

                      “You actually claimed she could do it despite a pardon, but I’m going to be nice and assume you were just confused.”

                      I’ll assume that you were confused, because this is the second thing you’ve attributed to me, that I didn’t say.

                      “you argue that Trump cannot charge DACA recipients because the Obama Administration declined to charge them.”

                      No, I still didn’t say that.

                      “Please clarify your position, because these don’t match.”

                      The problem seems to be at your end.

          2. What are sanctuary cities giving illegals sanctuary from?

            1. “What are sanctuary cities giving illegals sanctuary from?”

              The city’s resources being used to assist the federal immigration officers.

          3. It is difficult to accept that the present migration rate of 1 million per year is not mass migration. Calling that a lie, ruins your credibility.
            Moreover, mass migration has become a multi-regional phenomenon

            1. Difficult to accept? How long has it been that rate? Has not the rate dropped in the past?

              Your appeal to…million is big…. isn’t really doing much to convince me ‘mass migration’ is anything more than the nativist propaganda I said it was.

            2. “It is difficult to accept that the present migration rate of 1 million per year is not mass migration.”

              When your “facts” don’t line up with reality, neither will the conclusions you reach from those “facts”.

      2. This is getting a little tiresome. Again, nothing in the recent appropriations act limits the ability of the Government to rely upon other statutory authorities to fund additional border-barrier construction. Point to any statutory language limiting access to other funding sources or in any way limiting the President’s authority to declare a national emergency.

        1. “This is getting a little tiresome. Again, nothing in the recent appropriations act limits the ability of the Government to rely upon other statutory authorities to fund additional border-barrier construction.”

          Nobody is arguing that it does.

          What is being pointed out to you (to the point of it being tiresome because it wasn’t the answer you wanted) is that the specific statutes cited don’t allow the proposed spending.

          1. You absolutely right, if we have to rely on a gross misinterpretation of clear statutory language employed by an overreaching district court judge. How’d that work out with the travel ban stupidity?

            1. “How’d that work out with the travel ban stupidity?”

              The travel ban stupidity continues. It just isn’t where you think it is.

              1. So, in your broken mind all the decisions by overreaching district court judges issuing nationwide injunctions weren’t ultimately overruled? I guess that’s why you still probably believe in the Steele “dossier.”

                1. Your arguments are so bad, MKE!
                  You make arguments that have been addressed in the comments, in the Original Post, and in the ruling itself. And then you insist that anyone who doesn’t fall to their feet at your ‘clear’ correctness is arguing in bad faith.

                  It’s an impressive exercise in the anti-intellectual practice of thinking confidence is the same as correctness.

                2. “So, in your broken mind all the decisions by overreaching district court judges issuing nationwide injunctions weren’t ultimately overruled?”

                  Since you made this up, isn’t it in YOUR broken mind?

            2. “if we have to rely on a gross misinterpretation of clear statutory language employed by an overreaching district court judge”

              Between the choices of relying on gross misinterpretation of clear statutory language employed by some random dude on the Internet, and the federal district court judge, you lose.

  15. It’s amazing all of the expansions on executive powers the courts found during the previous administration.

    It’s equally amazing how many of those powers are actually constrained by constitutional checks during the current administration.

    I’m sure the court will find new expansive power the next time a Democrat occupies the White House.

    1. “Today, a federal district court in Washington ruled in favor of the House of Representatives — and against the Obama administration — in House v. Burwell, concluding that funds to pay cost-sharing subsidies to health insurers under Section 1402 of the Affordable Care Act had never been appropriated by Congress. In her opinion, Judge Rosemary Collyer concluded that, insofar as such subsidies have been paid, it was unlawful for the executive branch to do so.”

      https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/05/12/house-of-representatives-prevails-in-obamacare-suit-but-will-decision-withstand-appeal/

      The Trump administration dropped the Obama administration’s appeal of that decision. The rules apply equally to both. Trump and his supporters appear to be the ones upset at this fact.

      1. There are always people with short memories who see any obstacle to getting what they want as unfair and one-sided. It’s immature and childish, and, alas, a prominent feature of the current President’s psychological makeup.

        Look at EVERY court ruling that goes against him. Trump makes excuses instead of accepting that a ruling might have gone against him because he was wrong. No, the reason the judge ruled against you isn’t the extensive opinion they produce showing the reasoning, it’s because they were appointed by somebody else. Or whatever.

        1. For the third (maybe fourth?) time. Nothing in the recent appropriations act limits the ability of the Government to rely upon other statutory authorities to fund additional border-barrier construction. Point to any statutory language limiting access to other funding sources or in any way limiting the President’s authority to declare a national emergency.

          1. And for a fourth (or maybe fifth) time, repeated assertion of nonsense doesn’t make it true. Trump claimed the language of several specific statutes granted him the broad authority he claimed. The judge’s opinion examined the statutory language and laid out the exact reasons of why each claim was either justified (in one case) or not justified.

            If you had read the opinion you would know that, including knowing Trump’s plea was in part granted and in part denied.

            But you’re a Trump-bot so you simply parrot What Trump tells you to believe.

            Over and over and over.
            and know this was a

            1. If you think this vomitous mass of legal error will stand on appeal then you must have started drinking early for the holiday. No standing, no violation of any statute, a complete failure to show irreparable harm entitling plaintiffs to the extraordinary relief of a preliminary injunction. You probably also thought the travel ban decisions were going to hold on review.

              1. ” You probably also thought the travel ban decisions were going to hold on review.”

                They did, until the travel ban restrictions were changed enough to be legally enforceable. Did you forget that part?

                If the President’s lawyers can find an appropriation that allows the spending he wants to do, then he can go ahead. Until they do, he can’t. What a wacky ruling!

          2. ” Nothing in the recent appropriations act limits the ability of the Government to rely upon other statutory authorities to fund additional border-barrier construction.”

            If they didn’t appropriate money for it, they didn’t appropriate money for it. Saying “hey, they appropriated money for this other thing, let’s use that money instead” is a circumvention of the Constitution.

            It’s a circumvention when Democrats do it. It’s a circumvention when Republicans do it.

            Whoever made President Trump’s legal arguments tried to cite some statutes that authorized spending on something that could cover a big, beautiful wall. Alas for them, and for President Trump, and for border-wall contractors, they didn’t cite any that actually covered the proposed expenditures.

            1. Monies were appropriated under the 2019 DoD Appropriations Act, among other sources. The President clearly acted within his statutory and constitutional authority. I doubt even you believe this crap decision will hold up on review.

              1. ” The President clearly acted within his statutory and constitutional authority.”

                Guess that’s why he won the lawsuit, then.

        2. James,
          When the opinions are rendered in circuits that reek of venue shopping, one cannot blame the loser from claiming that the ruling was ultimately politically motivated.

          1. ? Venue shopping?

            1. That’s what they call it when you sue somebody in the federal district you happen to be located in.

          2. “one cannot blame the loser”

            Stop listening to the losers.

  16. And for a fourth (or maybe fifth) time, repeated assertion of nonsense doesn’t make it true. Trump claimed the language of several specific statutes granted him the broad authority he claimed. The judge’s opinion examined the statutory language and laid out the exact reasons of why each claim was either justified (in one case) or not justified.

    If you had read the opinion you would know that, including knowing Trump’s plea was in part granted and in part denied.

    But you’re a Trump-bot so you simply parrot What Trump tells you to believe.

    Over and over and over.

  17. I hope this nigger dies of sickle cell anemia.

    1. Your Republican Party, ladies and gentlemen.

      1. Clean your house, GOP. If you dare.

        1. 10 to 1 he’s an Obama fanboy sock puppet.
          Hell, it’s probably that Smollett guy from Chicago.

          1. Smollett seems to be innocent. Or at least the police clammed up real fast once the FBI showed up.

            And don’t just go into denial about the racists in your party. I get RAK, you get ThreeLetterBigot and this guy. Wouldn’t trade ya!

            1. Maybe, if this clown show were still at the Post, you’d have a chance of being right.
              But I doubt your average Aryan Brotherhood type regularly looks at Reason.com.

              1. Whether or not the average one shows up, some of them clearly do.

              2. Your evidence that everyone that makes your side look bad is actually from the other side is pretty lacking.

                Clean your house, don’t deny that the trash exists.

          2. Oh right, SLAR. You don’t think there are racists in the GOP? Wake up.

            1. There are racists in every demographic of any significant size.
              The out of nowhere mega racist stuff like that comment tends to be a hoax though.

              1. Sure it does.

      2. Or do you mean your Democrat Party, ladies and gentlemen? Seems like they are more like the mainstream racists of the day. Well, they don’t consider it to be racist to celebrate the fact that white people are not reproducing at levels that will sustain their percent of the population. And it is totally not racist to wish “old white men” die early deaths. Then add on their daily “hate whitey” rhetoric which surely isn’t the least bit racist.

        1. Your made-up whattaboutism doesn’t really stand up when the real thing is staring you in the face, in text, and clearly coming from your side.

          1. Funny how you are an apologist for racists and think just saying “whataboutism” gives Dems a pass for their bigoted behavior. Telling.

            1. Didja see the made up bit? Your ranting about Dems hating whitey is more persecution complex than persecution.

              You can find such rhetoric in fringey or youth forums, but on the right? It’s on FOX News and tweeted by the President.

              1. Sarcastrated lives in so much of an echo chamber he can’t see the “hate whitey” bend the liberals take almost every single day. Nothing to make up there. It is just the truth.

                1. “Sarcastrated lives in so much of an echo chamber he can’t see the “hate whitey” bend the liberals take almost every single day”

                  Just because they find YOU distasteful doesn’t imply anything about the rest of the white folks.

                2. Your insisting anti-white sentiment is all over the place doesn’t make it all over the place.

                  1. No reality dictates it is all over the place….keep on living in your vacuum though liberal loon.

                    1. “No reality dictates it is all over the place”

                      Correct. No reality is like what you imagine.

        2. Gracious yes. Maybe the OP is a secret Democrat running a FALSE FLAG operation designed to make the GOP look like unrepentant racists. And maybe RestoreWesternHegemony is in on the plot. And maybe MKE is running a false flag operation designed to make the GOP look like they can’t follow an argument. And maybe Jimmy the Dane and Smooth Like Rhapsody are running a false flag operatoin designed to make the GOP look like wackadoodle conspiracy theorists. In fact, maybe the entire commenter base on Volokh is now a devious trick concocted by George Soros.

          1. It’s all part of the Matrix.

          2. JtD is in RWH terrirory.

        3. “it is totally not racist to wish ‘old white men’ die early deaths.”

          Unless “racist” means “racist”, of course.

  18. It would be a delicious irony if the judge who writes the 9th circuit smackdown on this guy contributed $21000 to Trump’s campaign.

  19. This is just another low information Obama judge making a political decision from the bench which will be overturned on appeal. This whole #resist thing was so 2016. Time to get over it libtards.

    1. Can you smell all that wishful thinking?

      1. Wishful thinking that Trump has two more years to appoint Judges and the Left is increasingly giving him and the Republican majority in the Senate a good reason to steamroll and objections and pack the judiciary with appointments.
        When the Left can’t win a court case in another 4 years because their are REAL judges on the federal bench I am sure they will be regretting their #resist mentality.

        1. Piles and piles of wishful thinking. Big steaming mounds of it.

    2. Simple question: can you explain, legally, what you think the court got wrong?

      1. They didn’t do what President Trump wanted. Lock them up! Lock them up!

  20. This is what is wrong with the way the law has grown up. Judges decide which policy they favor and then back-in to a decision supporting that policy.

    In this case the Judge may have accidentally gotten things right. The congress did specifically weigh in on this topic and did specifically decline to allocate additional funds. So digging around and finding the money elsewhere violates the spirit of separation of powers, if not the letter of the law.

    However… there is that last little bit. The letter of the law. Which is what judges are kinda supposed to be following. And in this case it is pretty clear that the administration is on the right side of the law – the funds are related to a high-priority border security task and clearly seem to fall under the powers already assigned by congress.

    One could certainly see a different judge who happens to agree with the policy (or simply with the president, since this seems to be more personality driven than policy driven) taking pen to paper to opine that if congress didn’t want the executive to exercise this power, they should not have delegated this power – which they clearly did – in law.

    And this is why people are losing trust in the judiciary. Judges are supposed to rule based on the law and the facts of the case. And if it wasn’t clear before, the Trump era should have made it blindingly clear – they don’t. They decide which outcome they favor, and then they rationalize that decision by back-filling the needed case law.

    Everyone, partisan democrat, partisan republican or devout agnostic, should oppose this form of jurisprudence. Members of the bar should be particularly strict on this point, because if their profession becomes merely a tool of politics, it threatens their position in society and government. For many years, most judges have at least tried to wear a fig leaf over their partisan politics, but that era seems to be ending. And that’s not a good thing.

    1. If whenever Congress disagreed with a President over something the President thinks really important, an emergency resulted, Presidents could simply invoke the emergency provisions to spend money however they wanted.

      Why bother to have a Congress, why bother to pretend to give it the power of the purse, if its opinion on spending policy can be overridden whenever the President feels like it?

      A standard path for turning republics into tyrannies involves the invocation of emergency provisions to bypass the legislature in making everyday decisions. Enforcement of limitations on what “emergency” means are a necessary check on that path.

      1. Correction: It’s not the trying to do this that marks the change from free country to tyranny, but rather the acceptance of it that marks the change. Alas, a significant number of Americans are ready to sign on for it.
        Let’s go to war with a country that hasn’t attacked us! I’m sure we’ll find those weapons of mass destruction after we destroy their country. LBJ went to the trouble of pretending that Vietnamese forces had attacked US naval forces before committing American blood and treasure.

      2. More whining about how Trump is a “dictator”. Come on get over yourself. If anything Obama was more of a dictator with his use of executive orders and running around Congressional oversight. Remember when Hilary broke basically every federal law when she was running her own email server? Or when Holder was held in contempt of Congress and nothing happened?

        1. “More whining about how Trump is a “dictator”.”

          Not even close. Trump may WISH he could be a dictator, but dictators have to actually accomplish things, like getting the trains to run on time. Trump will tell you how great the train service is, while you’re standing on the platform waiting for a train that never comes.

          ” Remember when Hilary broke basically every federal law when she was running her own email server?”

          It’s not illegal to run your own email server.

          1. It is illegal to run your own email server and have your federal government email sent to it to avoid FOIA and other recordkeeping laws.

            1. It wasn’t illegal when W’s guys were doing it, it wasn’t illegal when Hillary was doing it, and it still isn’t illegal now that Trump’s guys are doing it.

    2. You didn’t read the opinion. It goes into detail about the text it is following. You go off as though the judge wrote a treatise on boarder policy.

      Read before you write stuff like this, and maybe you’ll come off as less than a tribal yahoo repeating the same thing over and over again, unmoored from the reality of the ruling.

      The determined fantasy that judges ruling against you being obviously corrupt is the only problem with our judiciary.

      1. Sarcastrated = low information liberal, apologist for racists, name calling bigot.

        1. I do respect a post that’s nothing but name calling and includes an accusation of name calling.

          1. Is it name-calling, or just psychological projection?

            1. In realspeak it is called telling the truth.

              1. You have as much familiarity with telling the truth as does Mr. Trump.

  21. Congress refusing to secure the border is an unforeseen military requirement.

    1. “Congress refusing to secure the border is an unforeseen military requirement.”

      As is the fact that the President has never heard of boats or airplanes, apparently.

  22. Reading many of these posts reminds me of how dangerous Trump could be to the rule of law if he were competent and had a coherent ideological agenda.

    BTW, I just got back from spending three weeks in Turkey. Part of Erdogan’s appeal outside of Istanbul has been the government’s spending on infrastructure and the jobs it creates (although it hasn’t been great for the value of the Turkish lira). The main roads through the countryside are terrific.

  23. How does this judge think that Congressional failure to pass a given bill to build the wall amount to a legal “denial” that funds from other sources can be used to build the wall?

    Perhaps he should review Schoolhouse Rock, which clearly explains that a bill is a legal nullity until it is passed…

  24. […] there has already been one such ruling, issued by a district court in California just a few days ago. It went against the administration. […]

  25. […] there has already been one such ruling, issued by a district court in California just a few days ago. It went against the administration. […]

  26. […] there has already been one such ruling, issued by a district court in California just a few days ago. It went against the administration. […]

  27. […] there has already been one such ruling, issued by a district court in California just a few days ago. It went against the administration. […]

  28. […] there has already been one such ruling, issued by a district court in California just a few days ago. It went against the administration. […]

  29. […] there has already been one such ruling, issued by a district court in California just a few days ago. It went against the administration. […]

Please to post comments