Border wall

Federal Court Rules Against Trump in Border Wall Cases

The decisions expand on the same judge's earlier preliminary ruling holding that the president cannot reallocate military funds to build his border wall.

|The Volokh Conspiracy |

Yesterday, Federal District Judge Haywood Gilliam of the Northern District of California issued two rulings against President Trump's effort to reallocate military funds to build his proposed border wall. The decisions conclude that Trump lacked the authority to transfer those funds without additional authorization by Congress. The rulings address lawsuits against the border wall brought by the Sierra Club and other groups, and by the states of California and New Mexico, respectively.

These decisions come as  no surprise because they largely build on the reasoning of Judge Gilliam's earlier decision to issue a preliminary injunction against the use of these funds for wall-building projects in areas of the border covered by the lawsuit in question. I analyzed it here. The principal differences are that the new rulings establish permanent injunctions against the use of the funds, not just a temporary injunction, and that they apply to wall-building in several more parts of the border area than the earlier injunction covered. Judge Gilliam explains that this is because there is now a more extensive record on what the federal government proposes to do in these additional areas.

I agree with Judge Gilliam's analysis of the main issues in these cases, and explained the reasons why in my post on his earlier ruling (which has much more detail on the legal issues). The administration's attempted diversion is a threat to separation of powers and would set a dangerous precedent if upheld by the courts. Conservatives who may cheer Trump's efforts now won't be so happy when the next Democratic president uses similar shenanigans to reallocate funds to projects favored by the political left.

As I also noted in that post, these decisions are just the start of what will almost certainly be a prolonged legal battle over Trump's wall-building plans. The government is already appealing Judge Gilliam's earlier ruling, and there are also numerous other pending lawsuits related to the wall.

For reasons discussed in my earlier post, Judge Gilliam's rulings do not address several issues that are likely to come up in other wall-related cases. 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 the use of some of the funds Trumps wants to access), and whether the president has the authority to use eminent domain to seize property for border wall construction not specifically authorized by Congress.

Judge Gilliam is the first federal judge to address (some of) the substantive issues at stake in the wall litigation. But, earlier this month, another federal trial court dismissed a wall lawsuit filed by the Democratic-controlled House of Representatives because the judge concluded the House lacked standing to file the claim. I criticized that ruling (which is also likely to be appealed) here.

Even if the standing decision stands up on appeal, it is unlikely to prevent judicial review of Trump's wall-building plan, because there are many other lawsuits against it brought by parties who clearly do have standing, even if the House does not. The real import of the standing decision is its potential impact on other separation-of-powers disputes between the president and Congress.

To briefly sum up, Judge Gilliam's decisions represent a notable victory for critics of Trump's wall-building plan. But this is just the beginning of what is likely to be a lengthy legal battle. Stay tuned!

 

 

NEXT: Massachusetts Lawmakers Want To Crack Down on Beer Gardens

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.

  1. Like a vigilant hawk, Ilya Somin swoops in, gleefully, showing how the Judicial Resistance, if it keeps it up, will practically guarantee Trump a victory in 2020. After all, Trump has tried to build the wall, but has been frustrated by bureaucracy at every turn. Voters will reward him.

    But we’re so glad that Somin is on the issues. Every time a district court rules against Trump, he’s here with a post.

    1. Just so we’re clear, you not only object to the rule of law, but also to bloggers blogging about topics that interest them?

      1. Snort, “rule of law”.

        Left wing Resistance!! judge making up things.

        1. Let me sum up the reason for this and other rulings: “Orange Man Bad”

      2. The field is called “TrumpLaw”, and it’s practiced primarily by the Ninth Circuit and judges out on tiny islands. The primary feature of TrumpLaw is that the judges rule that the law is clear, except Trump.

        This is why, as in this case, a judge has suddenly ruled that the President’s ability to move money around for an emergency, which has existed and been upheld for decades, suddenly doesn’t exist because Trump.

        1. Emergencies don’t last for decades. By definition.

          It’s not “TrumpLaw.” It’s telling Trump he’s not above the law. Read Ilya’s earlier post.,

          1. “Emergencies don’t last for decades. By definition.”

            Really?

            List of national emergencies in the United States
            From Wikipedia, the free encyclopedia

            Current Carter November 14, 1979 Sanctions[20] Blocking Iranian Government Property[21] (Executive Order 12170)[21] – ordered the freezing Iranian assets as part of the U.S. response during the Iran hostage crisis[4]

            Current Clinton November 14, 1994[31] Arms[20] Proliferation of Weapons of Mass Destruction[32] (Executive Order 12938)[33] – provides for control over the export of weapons;[31] combined two previous national emergencies regarding WMDs.[4]
            Current Clinton January 23, 1995[34] Sanctions[20] Prohibiting Transactions With Terrorists Who Threaten To Disrupt the Middle East Peace Process (Executive Order 12947) – imposed economic sanctions on Specially Designated Terrorists, including the ANO, Hezbollah, the DFLP, Hamas, and the PFLP.[34]
            Current Clinton March 15, 1995[35] Sanctions[20] Prohibiting Certain Transactions with Respect to the Development of Iranian Petroleum Resources[4] (Executive Order 12957)[35] – intended to prevent a business deal between Iran and Conoco.[36]
            Current Clinton October 21, 1995[4] Sanctions[20] Blocking Assets and Prohibiting Transactions with Significant Narcotics Traffickers (Executive Order 12978)[37] – declared in response to Colombian drug cartels using American companies to launder money.[4]
            Current Clinton March 1, 1996[4] Maritime[20] Declaration of a National Emergency and Invocation of Emergency Authority Relating to the Regulation of the Anchorage and Movement of Vessels (Proclamation 6867)[38] – implemented following the destruction of two civilian aircraft by the Cuban military on February 24, 1996.[39]

            1. Get facts out of here. You’re dealing with bernard. Feels over facts.

            2. The point is they arise suddenly.

              1. From that sub-section of the list:
                Money laundering had been going on for decades before the “Emergency” was declared.
                By 1995, the 1979 Emergency was 18 years old, so why another anti-Iran economic sanction an “Emergency”?
                Hamas, Hizballah, the PLO, and all their ilk has been terrorists for decades by the time this “emergency” declaration occurred.
                The Arms Proliferation “Emergency” was a combination replacement of two previous “emergencies”. How does that arise suddenly? “Oh, my god! If we don’t combine these two bureaucratic rules into one, the world will end!” Somehow, I doubt that’s what happened.

                Most Federal “Emergencies” are neither sudden nor short term.

          2. bernard

            Read again

            “a judge has suddenly ruled that the President’s ability to move money around for an emergency, which has existed and been upheld for decades, suddenly doesn’t exist because Trump.”

            I’m pretty sure Toranth was saying the President’s ability to move money around for an emergency has existed for decades. And now the judge says that ability doesn’t exist.

            Illegal border crossings are at an all time high. Over 100k per month now, and that’s just the ones that they arrest. That’s over 1.2 million per year, just the ones they apprehend. That’s equal to all legal immigration which is itself grossly excessive. And again, that’s just the ones they catch.

            The number of illegal immigrants in the country is probably 25-50 million now. 11 million is a number from the 90s.

            1. The number of illegal immigrants in the country is probably 25-50 million now.

              What support do you have for this, other than the fevered imagination of some Fox moron?

              1. Well, the left’s desperation to keep them from being counted is certainly suggestive. But there is this.

                1. Brett,

                  Thanks for the link. I thought you guys didn’t trust statistical models and the like. I guess you do when you like the results.

                  However, please STFU with ascribing bad motives. The “left” doesn’t want an undcercount. In fact, the “left” would like an accurate count. That’s plain from the arguments in the case. The complaint is that the census question wouldn’t produce that.

                  It is very plain that it is the right who wants the illegal immigrants undercounted. Very plain. The whole point of including the question was to produce an undercount. So not only is your comment insulting, it’s utterly ignorant and reverses the motive of the parties.

                  And don’t tell me the left doesn’t want the scope revealed. There is zero fucking evidence the left doesn’t want an accurate count, and plenty of evidence – mountains of it – that it’s the right that wants an undercount.

                  So take your paranoid BS and put it where it belongs.

                  1. Lol. Bernard’s at a loss when stuff comes from the fevered imagination of a Yale moron.

                    1. TIP,

                      I think you misread my comment.

                      I’m not at a loss.

                      I have no criticism of the study Brett links to, especially since not many details are provided. It might be right.

                      I will say, again, that your admiration for statistics-based modelling is newfound, as is your admiration for Ivy League institutions, but that’s not my main point.

                      What I objected to was Brett’s claim that, contrary to all evidence, the “left” is trying to have illegal immigrants be undercounted. That’s idiotic, and the only reason he says it is to take a random shot, because in his mind absolutely anything that’s wrong, or might be, is the fault of the left.

                      I mean,the whole reason Ross and Trump and the Republicans on the court want the Census question is precisely to produce an undercount. If you can’t accept that you’re in outer space.

                  2. Statistical modeling is fine, so long as you keep in mind that all you get out of a statistical model is an educated guess, which is only as good as the assumptions that went into the model, but which can be considerable worse.

                    To be clear, yes, the right would prefer that illegal aliens not be found by the Census.

                    The left would prefer that they be found, but not found to be illegal aliens. You want them to count in the total, but not be identifiable as illegal aliens.

                    Because they swell your representation in apportionment, and give birth to future Democratic voters, and knowing how many of them are already here might prompt the public to put a stop to it before you’re finished electing a new people.

                  3. Never mind the silliness of us trying to prescribe the motives of others, but I see no actions on behalf of any leftist suggesting they even want to count the number of illegal immigrants without blanket amnesty prior to counting. Their states have gained over 10 seats and countless electoral votes since Reagan amnesty. Objectively speaking, your assertion doesn’t hold either. Illegal immigrants are currently used like slaves in the sense that they cannot vote but count towards representation. The difference is we don’t have any compromises, so they count as a full vote and not 3/5ths. That’s why leftists are pushing for one person, one vote; they know we’re onto their scheme and the walls are closing in.

                    Anyone that isn’t a leftist benefits from overstating the number of illegals. That way, the American people will be more incensed when they hear we’ve let in, say, 50 million illegal immigrants and states like California have stolen not only 1 or 2 electors, but 20. At that point, we’ll have to start asking if this was intentional and the consequences of it, namely leftist politicians conspiring to import peoples to seize electoral power. Every single national election they won will be called into question and accusations of treason will be more prevalent and mainstream.

                    The left has everything to gain by clouding the debate. They don’t want anyone to know just how much representation they’ve stolen from us. There are no possible benefits to them counting the number of illegal immigrants.

          3. Right – and I have some swampland in Florida for you.

            Roberts was speaking nonsense when he asserted there were not left courts and right courts.

            Only an idiot would claim that on substanitive issues our courts have become politicized.

            I have zero problems curtailing a presidents emergency powers, though I think we do so by changing the law or the constitution.

            But this – like numerous other decisions, is not “the rule of law”, It is “TrumpLaw”. It is legal constraints that are being imposed ONLY on Trump. Does anyone doubt that a democratic president engaging in the same or similar actions would have his actions blessed by the same courts denying Trump ? TrumpLaw!
            I forget the exact number, but there have been something just less than 100 presidential declarations of emergency in the past 40 years. Most regard issues of pretty much zero consequence. Most though smaller in scale offend the constitution, the law, and limited government principles far more than this.

          4. There are myriads of “presidential emergency declarations” still in effect – after decades.

      3. No, we don’t object to the rule of law. But black Obama-appointed judges that are part of #resist are not components of the rule of law.

        1. black Obama judges??? Man, not even the courtesy of making it a dog-whistle. Bonus points for having the integrity to make your racism front-and-centre.

          1. I’ve said many times that I don’t believe that non-white males are generally capable of objectivity and non-tribal applications of the rule of law.

            1. *decries tribalism while being white supremacist* The utter state of The Volokh Conspiracy comments section.

              1. On the contrary, white males are the only people in history to ever build a society that prioritizes equality before the law and an objective truth that transcends tribal and familial loyalties.

                1. Education, reasoning, decent Americans should be grateful to the Volokh Conspiracy for bringing unvarnished conservative opinion to a broader audience — most Americans, especially those residing in modern and successful communities, don’t visit Breitbart, RedState, Instapundit or Stormfront often enough to get a good sense of current right-wing opinion.

                  Thanks, clingers!

              2. In order to understand someone like this, you have to understand what identity politics has done to society. You can’t expect group consciousness to be at the forefront of society and somehow have that apply to everyone except wasp/anglo/european people. He’s also not wrong about the history of societies like ours, but where people like this fall short and where the ethno vs. civ nat debate begins is who belongs to this “white” in-group and whether so called “non-whites” are capable of becoming like us.

                He quite clearly said he doesn’t believe such people to be generally capable. I can understand that sentiment in the sense that if a population is statistically not pulling its weight, we probably don’t want mass migration right now. But that’s where most people stop sympathizing because most of us believe in the individual and their ability to change.

                1. Of course individuals of any group can become like us. But ultimately IQ is the determining factor. East Asians can become like us. Most Hispanic mestizos cannot. There’s a reason why Africans have failed everywhere they exist in the world.

                  1. In terms of voting demographics, mestizos are far more “American” in the sense of ‘keep the govt off my guns/property/life.’ I don’t agree with your assertion that IQ determines cultural values. Most east Asian societies are far more repressive than the US.

                    1. No, they’re not. 80-85% of mestizos vote for Democrats. That isn’t the case for whites.

                      And I don’t think IQ determines cultural values. I said that high IQ leads one to be able to assimilate to American cultural values. Low IQ people are generally incapable.

          2. Just to be clear – you have and will never note that a judge is
            male,
            white
            republican appointed

            I do not think the race (or gender, …) of a judge is relevant.

            Though I am not prepared to lob accusations of racism just because someone takes note of race.

            But you clearly are. So are we agreed that references to “white priviledge” as an example are racist ?

            Or are you a hypocrit ?

            1. That’s because white, male judges rule both ways. Their race and gender is not central to their identity, and thus, they’re not biased. That isn’t true for anyone else.

    2. Since when did Congress morph into “the bureaucracy?”

      Ever hear the phrase “No taxation without representation?” Mean anything to you?

      1. Careful. The two arguments for the regulatory state are that there are too many laws for Congress to directly pass, and that the regulatory state takes the politics out of it.

        Neither of which is buttressed by your archaic observation, an idea by dead old white men that we in the modern era should not feel bound by.

  2. That was about as predictable as the Sun rising in the East.

    You know what’s almost as predictable? It being overturned.

    1. Similarly predictable: The bigots will lose on immigration (they always do in America, as successive waves of ignorance and intolerance have demonstrated throughout our history), and not only will wall-building end in a few years but indeed any wall that has been built may be razed.

      1. There is no parallel between the European immigrants of 1880-1920 and the Hispanic immigrants of today. Zero.

        1. Quite a few actually, and I will start with a couple negatives to prove my point. Italians brought the Mafia, Hispanics bring MS-13. Irish brought machine politics, Hispanics joined the machine politics that blacks inherited from the Irish once they moved on. When the socialist and anarchists among the immigrants went to far by doing things like bombing Wall Street, in 1920, we cut off most immigration. That is the point we are at today.

          1. What are you going to do, m_k, stop immigration because of Sacco and Vanzetti?

            I haven’t heard about any recent bombings of Wall Street. Must have missed it.

            We do have a lot of terrorism perpetrated by white supremacists – pals of RWH no doubt. Let’s kick them out before we worry about immigrants who, legal and illegal, have lower crime rates than US citizens.

            1. What am *I* gonna do? Nothing but vote and defend myself if necessary.

              You miss the wider point though, that like the 1920s, the elites only acted against immigration when it affected them personally, which it arguably is now, by the deplorables electing Trump.

              That lower crime rate stat is bunk btw. So much illegal immigrant crime goes unreported because they risk deportation, and that particular study used county level comparison in a statistically invalid way. Yet the meme lives on in liberal minds.

              White supremacy terrorism? *chuckles* oh yea, tons and tons of it compared to guys named Mohammed something-something or MS13 gangs.

          2. Yeah, the difference is that the mafia was not nearly as prevalent among Italians as general disorder is among Hispanics. Not to mention that Italians and Irish assimilated. Hispanics don’t. Even by the 5th generation, Mexicans are far behind the average white American. Look at the statistics.

            1. So now you admit that are some similarities, rather than nothing comparable, just rather the size of the problems the immigrants brought?

              Look, I don’t like endless waves of hispanics looking for a job and a welfare handout either, but lets not kid ourselves, nor pretend that the WASPs didn’t have the vapors over hordes of swarthy Italians or backwards Catholic Irish. Look up the history of NY’s Sullivan Law , the strictest gun control at the time, passed in response to Italian immigrant crime.

            2. From “Huddled Cliches:”

              Of all the pro-immigration arguments, the parallel between Italians and Hispanics is perhaps the most stupid and offensive. It is true that southern Italian immigrants to the United States were for the most part of a lower socioeconomic class and of traditional Catholic background, and that their descendants have taken longer than some other European-origin groups to move into the mainstream of American life. But Italians never formed an aggressive ethnic lobby as Hispanics have done. They never demanded quota representation in every area of American life. They never formed huge “bilingual” establishments. They never promoted a distinct sub-national identity openly hostile to the American nationality. They never formed a huge welfare class. There were never Italian-American academics and elected officials who declared that the United States is a guilty country that has no right to protect its borders. Most importantly, Italians never dominated entire cities and regions, swamping American institutions and customs and setting off a mass exodus of Americans from those areas. Indeed, how could they? People of Italian origin have never comprised more than four percent of the U.S. population. Hispanics already comprise over 12 percent of the U.S. population and (if immigration is not stopped) will comprise 25 percent in a few decades. Their growing presence in California, where they now make up over a quarter of the population, could very well lead to the Quebecization of that state in the near future.

              1. First, I agree that you cannot have a multi-cultural welfare state with generous immigration without severe problems of social cohesion and government debt. But that said….

                …now you’re changing your argument. Now you’re saying the country has changed (less emphasis on assimilation and welfare benefits that Hispanics don’t hesitate to draw upon) leading to problems with Hispanic immigration, rather than there is no comparison at all between Italians/Irish and Hispanics. Indeed, when you lump in the Irish and Italians and the Slavs that came in the late 19th and early 20th Century, the numbers that came in were I suspect identical to the Hispanics today, per capita. So even your 4% to 12% comparison is off base.

                1. I think you may be taking rhetoric a bit too literally. There’s “no” comparison in the sense that a comparison is very far-fetched, but there’s always a comparison just like there’s always “someone” who disagrees even if 99.9% agree.

                2. Sure, the problem ultimately stems from society, in that if we didn’t have a generous welfare state and permit multiculturalism, Hispanic immigration would be less of a problem than it is. But that doesn’t change the fact that most Hispanics are low IQ, low skill, low quality people that are a net detriment to any society they’re added to.

      2. It’s interesting you want to win the elections so you can control the Supreme Court to defeat opponents’ policies rather than do so directly.

        As an aside, I heartily encourage judges to look behind the claimed reasons for legislation, and ferret out the real reasons, and, if they be unconstititional, toss tbe law.

        Somehow I think many are just fairweather friends of this principle.

    2. Well, no doubt Trump’s lapdogs on the Supreme Court will overturn it.

  3. According to federal election records, Gilliam donated $6,900 to Obama’s campaign for president—$4,600 to Obama for America and $2,300 to the Obama Victory Fund.

    Gilliam donated additional funds to Obama’s re-election campaign, sending $13,500 to Obama for America and Obama Victory Fund 2012. He also donated $4,500 to the Democratic National Committee. From 2012 to November 2014, he sent $3,100 to the Covington and Burling LLP PAC. -Epoch Times

    1. Is Obama a party to this proceeding?

      1. No, but the contributions show the judge’s political biases.

        1. So he should have recused himself because it’s a different policy choice than Obama would have made?

          1. One can be biased and not have to legally recuse as a judge.

            Just about all the the Resistance!! judges are Democrats. They don’t have to recuse but we don’t have to think its a coincidence.

        2. I wonder what John Roberts’ political contributions before he became a judge were?

          Does the fact that Thomas’ wife is a fanatical right-wing activist mean he should recuse from lots of cases?

          1. “Does the fact that Thomas’ wife is a fanatical right-wing activist mean he should recuse from lots of cases?”

            No, but you can bring it up and people can think it says something.

            Lower federal judges have specific recusal rules they have to follow and in general a spouse’s political activity is not one of the reasons. Fun fact, while the rules are applicable to Supreme Court justices there is no enforcement mechanism other than their own opinion and, in theory, impeachment.

            Funny how no one on the left is ever fanatical.

            1. The Thomas household rakes cash from the wingnut conspiracy craze. Plenty of it.

            2. There are fanatics on the left.

              Not many as nutty as Virginia Thomas, and none with the ear of a SCOTUS justice.

              1. Some of the fanatics on the left are every bit as nutty, and have both ears of SCOTUS justices, from the most convenient vantage point of all:

                Directly between those ears.

              2. RBG sits on the Court directly; no need for that Progressive activist to have anyone else’s ear.

  4. What concerns me about this ruling is the court’s definition of what constitutes “denial” of the right to use funds for a particular purpose.
    The court holds that Congressional failure to give the President what he wants, either through a failed vote or failure to act at all, somehow constitutes “denial”.
    That can’t be right. As we learned from Schoolhouse Rock, a bill that fails to become a law is a nullity–a sad little nobody sitting on the steps of Capitol Hill.
    But the court seemed to give a failed bill an “E” for effort and ruled that the failure of the bill to pass somehow affected the President’s authority under previously passed legislation.
    If there is a threat to the separation of powers, it is in this presumed ability of Congress to restrict authority previously vested in the President by NOT passing legislation.

    1. If you ask for something, and are told you can’t have it, your request has been denied.

      1. OTOH, if you’re given something, and an effort to take it away fails, you’ve still got it. The National Emergency Act is still on the books, Bernard. A failed attempt to override it doesn’t change that.

  5. Somin wrote “his border wall.” Nope our border wall.

    1. Nope. His.

    2. “Somin wrote “his border wall.” Nope our border wall.”

      Nope. Mexico’s paying for it, remember? So, THEIR border wall.

  6. So, if the President decides that the Army should for instance buy more pistols and fewer rifles, can states and “activist” groups get a single federal judge to stop it?

    That is what the logic of this case dictates. Judges can decide instead of the Commander in Chief under Article II what orders are issued.

    1. In the World of TrumpLaw, judges can overrule any other branch or official throughout the entire nation, because that one judge prefers a different policy.

      This is the basis behind the opposition to the minor travel restrictions, the rolling back of illegal and unconstitutional immigration programs, or the spending of funds in accordance with Congress’s emergency spending laws.

      In the World of TrumpLaw, we are all Humpty Dumpty.

    2. If the President asks for $1 million to buy pistols, and Congress only gives him $500,000, he can’t yank another $500K out of the money specifically appropriated to buy rifles.

      It’s not the judge deciding. It’s the judge enforcing Congress’ decision.

      1. If there is a national emergency, he certainly can.

        He can do a lot of things in a national emergency. Ask FDR or Lincoln.

        1. No emergency, Bob.

          Emergencies, by definition, are sudden and unexpected.

          1. Congress has granted him this power. They can change the laws to remove it. Per this judges own logic, since congress has not repealed the powers in wake of the request, they are not withholding their consent. This is the problem with the retarded logic Ilya and this judge use.

          2. In this case, emergencies are, by statutory definition, decided by the President.

            1. In your formalism, Congress has delegated away all of it’s budgetmaking authority with respect to the DoD. That would be an overdelegation twice over, and unconstitutional.

              Or, by Constitutional Avoidance, maybe there are cognizeable limits to the executive’s authority to declare an emergency…

            2. So the President is a dictator, Brett?

              He can do absolutely anything he wants, or at least spend money any way he wants, just by uttering the magic word “emergency?”

              That’s what your claim amounts to.

              1. I’m going to assume you’re asking in good faith (if not, just respond to this with a trolling comment).

                Congress allocated $500k for pistols, but the president wants to buy $1M worth.

                Under your implied logic, that’s the end.

                But Congress has also passed other laws, that say that if the President chants a particular incantation, he can take money out of one bucket and out it in another.

                The incantation is “I declare a National Emergency.” And the buckets are for military installations.

                You may think that’s a dumb law, or that Congress must have assumed the President would only use it for things they agree are emergencies (hint: half the population thinks this is an emergency, and based on recent comments from Democratic presidential candidates, that’s rising). You may even think that this is a good law, but foolishly utilized (I’m almost there – I’d prefer explicit allocation only with a catch all that if the president violates it he gets automatically impeached – then if it’s critical he’ll do it anyway and bear the consequences).

                But the actual laws that have been enacted are pretty clear: the President says his magic words, and he can access additional funds that Congress has already conditionally allocated.

                Where there may be room to stop some of this properly (outside of the political process, which doesn’t have enough votes to retract existing law that one party doesn’t like the current results of) is to ensure that funds are actually used for military installations (shorthand here, read the text for the actual requirements). Of course, the President could get around this by make the first 100 meters of the border a live fire training zone, so even this is limited.

                1. Robert, you’ve worked very hard to exclude the middle between the President can do anything and there is no reprogramming authority allowed.

                  You can allow reprogramming and yet not allow it in this case.

                2. “But Congress has also passed other laws, that say that if the President chants a particular incantation, he can take money out of one bucket and out it in another. ”

                  Hold on. Does the President have the power to create a condition just by saying it exists, or is the President allowed to recognize a condition, and act accordingly, if and when it exists?

                  For example, all that off-budget stuff at Area 51 that is for repelling an alien attack… do there actually have to be aliens attacking to use it? Do there even actually have to be aliens? Or is “I’m using these secret bombers to attack aliens” good enough, regardless of whether any alien bodies turn up amongst the ruins?

    3. “So, if the President decides that the Army should for instance buy more pistols and fewer rifles, can states and “activist” groups get a single federal judge to stop it?”

      Congress gets to decide what the United States buys, because they get to decide what money gets appropriated and what money does not get appropriated.

      Did you mean to select a bad analogy, or did it just happen?

      1. Except Congress also gave the President the authority to move around spending.

        So in your example, we’d have Congress not allocating money for rifles, and the President using the authority Congress gave him to move money to buy the rifles he wants.

        He wouldn’t be able to do that if Congress passed a law forbidding him from doing it… but here, Congress DID NOT do that.

        1. Toranth,

          Congress can’t pass laws forbidding him from spending money on all the things he might want – rifles, golf clubs, M&M’s.

          When they appropriate money for rifles, it’s supposed to be spent on rifles. The notion that waving his hands and yelling, “Emergency!” changes that is ridiculous.

          1. Then they shouldn’t have passed a law that allows the President to declare an emergency about anything and move money around.

            I would LOVE to see this sort of delegation by Congress declared unconstitutional. But if it is unconstitutional here, it is also unconstitutional everywhere else it is done – and THAT is the determination the Courts are refusing to make. And that is the reason this is political TrumpLaw, rather than actual law.

            1. It won’t get really fun until Congress expressly refuses to fund his travel habit. No taking a couple of hundred people to visit one of his golf resorts, where the government pays full list price for hotel rooms for everybody. No leaving Washington at all.

              You’ll know a Constitutional Crisis is looming when the Congress votes to expressly defund his Secret Service detail.

              I’m pretty sure his “they want to tax us at 95%” is self-fulfilling prophecy. They didn’t want that, but now that the idea is out there, maybe the tax overhaul of 2021 will have something special just for him…

              1. Ideally, it would be something that applied a 95% rate, BUT you could get out of the 95% rate if your tax returns were released to the public…

    4. A more likely scenario would be Congress cancelling some major weapon system. The Commander in Chief doesn’t get to spend our money without appropriations from Congress.

      1. Sadly, it’s the other way around. The military wants basic supplies, and Congress buys them a major weapon system that they’ll just have to warehouse because it’s not useful to the military.

        Graft wins over almost everything, after all.

  7. Spending billions in the Middle East, and building fences in Afghanistan is ok. But not securing our own border.

    It’s time to start impeaching judges.

    1. You’re an awful lawyer, if you don’t have the humility to take it when a judge doesn’t rule the way you want him to.

  8. The fact that Trump hasn’t ordered helicopter rides for these savages shows he’s not the tyrant the left accuses him of being. I would have ordered the military to fire on these people long ago.

  9. Allow me to predict, without checking first, how the commentary runs:

    Waaaaa! Why can’t we have what we want? The President is just trying to enforce the law! We NEED a wall, because… reasons! Something, something, second-amendment solution!

    The President is refusing to learn how to do his job, which is to guide the legislation for what he wants to do through Congress. To call up people who already want to do what he wants, and get them on board, and then to call up people who don’t already want what he wants, and find out what they want to get on board anyway.

    In summary, to make deals, which (gasp) it turns out the President was lying about his ability to accomplish.

    Perhaps, now that “do it my way and I won’t consider anything else” has turned back into “not doing it” he’ll actually give deal-making a try. My guess is, though, that he’ll continue not doing it but telling his fans that he is doing it, and doing a wonderful job of it, too. Wagers?

    1. There’s no way to convince Democrat Party legislators to support anything that will help to secure the border, as the influx of low-IQ Hispanics will eventually flip Texas and give Democrats permanent electoral control. The party of free stuff needs low-IQ third worlders who will vote for free stuff.

      Trump’s deal making ability has nothing to do with it.

      1. “Trump’s deal making ability has nothing to do with it.”

        Because it doesn’t seem to exist?

  10. Well, here we have the message from the right:
    At best, all judges who rule against Trump do so in bad faith.
    At worst, impeach or kill all judges who rule against Trump.

    Truly towering intellects on the right. Truly a movement in ascendance.

    1. As opposed to the “towering intellects” who think that cutting off one’s schlong and taking estrogen pills turns a man into a woman?

      1. Yay, you’re helping!

    2. While I’m not on the right, I do listen to them a lot, so it really should be:
      Best Case: judges who rule against Trump doing things that his predecessors did, or that is explicitly allowed by statute but goes against the current political talking points are doing so in bad faith.

      I think your “at worst” is just about right, though I don’t think that’s limited to “the right” since it appears that most of the recent political violence has been from the Left (compare Charleston being a regularly repeated talking point vs the assassination attempt of republican congressmen by a Bernie Sanders supporter, which is almost never repeated to tar the entire left).

      1. Robert, you sure do argue from the right wherever I see you this past week.

        Anyhow, your ‘bad faith by inference’ is begging the question – all these cases are on novel issues – that’s why their being discussed. Refusal to see a distinguishing difference doesn’t mean there isn’t one.

        1. Not to mention no one here seems to actually be reading the case, just knee-jerk ‘it’s against Trump so bad faith’ commenting.

  11. I would substanitively disagree with Somin on ONE point.

    One of the problems with this decision – and many of the other decisions regarding Trump is that they are “one-of” decisions.

    I would absolutely cheer if the extremely narrow interpretation of federal powers that left leaning courts have attempted to straight jacket Trump with was consistently applied – to Trump, his predescessors, and his successors,

    With respect to the past – it has not been. Much of what Trump has done, Obama did, as well as Bush, Clinton, ….. without resistance atleast by left leaning courts.

    In that respect these courts are clearly hypocritical, and that is an abridgement of “the rule of law”.

    One law, one constitution, one set of standards, for all presidents, for the federal government as a whole.

    As to the future, I have virtually no doubt that the very same courts that are ruling against Trump will be ruling that future presidents – possibly even republicans can do much of what they deny Trump is permitted to.

    With few exceptions our courts are politically bankrupt. They have lost any connection to the concept of “the rule of law”.
    Each case is decided pretty much before hand – not on the issues, the constitution, or the law, but based on WHO the contenders are and what the desired outcome is.

    Sometimes that does mean oppinions that conform to the constitution, and the law. But that is an accidental side effect.
    Nor do such decisions appear to have any precidential value.

    1. Everybody agrees that the federal government has complete authority to build a border wall if it wants. Congress need merely pass a law appropriating money for the purpose, and no judge is going to object. This judge specifically said construction based on the money Congress did appropriate is not at issue.

      The question here is what powers do the President have when acting alone. And there is a great deal of precedent for the idea that, absent very unusual circumstances. A President cannot take money Congress appropriates for one purpose and spend it on another. The Constitution gives Congress, and Congress alone, the sole power to tax and spend money on the Federal government’s behalf. And it did so in the context of a revolution in which the colonists revolted against an attempt by King George III to tax them, with the rallying cry “No taxation without representation.” This principle was built into the Constitution.

      To claim this principal is a recent attempt by liberals to hamstring the President is to throw almost the entirety of American history out the window.

      Much of the Constitution is a deliberate attempt to hamstring the President by requiring some other body’s permission to do something, usually but not always Congress’, precisely to prevent all power from being concentrated in the hands of one person. It’s a feature of the Constitution, not a bug.

      1. “Everybody agrees that the federal government has complete authority to build a border wall if it wants.”

        IIRC, Ilya doesn’t.

        “The question here is what powers do the President have when acting alone.”

        In this case, no, that’s not the question, because the President didn’t pull the National Emergencies Act out of his nether regions. Congress enacted it, and a prior President signed it into law. So he isn’t “acting alone” in the relevant regard.

        Now, Congress probably didn’t intend that it be invoked under these circumstances. Boo hoo. That’s what happens when one branch of government foolishly delegates its powers to another.

        Should the National Emergencies act be struck down on anti-delegation grounds? Sure. But that’s different from only Trump being able to invoke it, which is where the lower courts are going right now.

        1. “‘Everybody agrees that the federal government has complete authority to build a border wall if it wants.’

          IIRC, Ilya doesn’t.”

          “has the authority to” and “should” are different questions.

          One of the fun philosophical questions has to do with the nature of representational democracy… if most of the people are against something, but their lawfully-selected representatives are for it, do the representatives have the authority to do it anyway? Or is that a misuse of power?

          Right now, there isn’t a sufficient portion of Congress that wants a useless wall, so Congress hasn’t auhorized a useless wall and therefore it doesn’t matter how much Mr. Trump and his fans want a useless wall. Now, if Trump were 1% as good at making deals as he said he was during the campaign, he’d get the deal done and build a useless wall, plus somethings that Congress wanted to do, too. But that’s not how Mr. Trump’s deal-making skills run… he has “do it my way because I said so”, and if and when that doesn’t work, he blames everybody but himself for not getting it done.:

  12. Could you supply a link to the decision?

    In the preliminary injunction, Judge Gilliam made a ruling on the “emergency” issue. He basically said that an emergency in the context of military spending refers to an unforeseen military necessity and, whatever one might think about the necessity of immigratikn control by means of a border wall, it is neither military nor unforeseen in nature.

    I am curious what he said on this issue in the later opinion.

    1. Too bad that’s not what the law actually said.

  13. I see that (for once) Congress has actually been jealous of its own authority and, for at least part of the money in question, has declared the money can’t be spent for reasons rejected by Congress. In which case, since it seems Congress has rejected border-wall spending, this particular pot of money can’t be spent on a border wall.

    Now I presume Congress will be similarly cautious in future appropriations…no, just kidding.

  14. Ironic how Federal judges in California always upheld any action taken by Obama even ones like DACA which clearly usurped Congressional authority by ignoring laws passed by Congress. Yet when the President is Trump he is incapable of any action they consider legal. The federal judiciary is so infected by politics we no longer have an actual system of “justice”. The check it is supposed to provide no longer exists because political ideology decides cases, not the law.

    1. Federal judges in California always upheld any action taken by Obama

      Feels too true to check!

  15. […] I have pointed out previously, the stakes here go far beyond the specifics of the wall issue. If the Trump administration can use […]

  16. […] I have pointed out previously, the stakes here go far beyond the specifics of the wall issue. If the Trump administration can use […]

  17. […] I have pointed out previously, the stakes here go far beyond the specifics of the wall issue. If the Trump administration can use […]

  18. […] I have pointed out previously, the stakes here go far beyond the specifics of the wall issue. If the Trump administration can use […]

  19. […] I have pointed out previously, the stakes here go far beyond the specifics of the wall issue. If the Trump administration can use […]

  20. […] I have pointed out previously, the stakes here go far beyond the specifics of the wall issue. If the Trump administration can use […]

  21. […] I have pointed out previously, the stakes here go far beyond the specifics of the wall issue. If the Trump administration can use […]

Please to post comments

Comments are closed.