Border wall

Appeals Court Rules Against Trump in Border Wall Case

The ruling upholds a trial court decision holding that the president cannot divert military funds to builds his proposed border wall.

|The Volokh Conspiracy |

On Wednesday, the US Court of Appeals for the Ninth Circuit issued a decision upholding a trial court ruling blocking President Donald Trump from diverting military funds to build his border wall. The ruling closely follows the reasoning of the district court decision it upheld. I analyzed that earlier decision here.  Both decisions address the president's attempt to use Section 8005 of the 2019 Department of Defense Appropriations Act to use some $2.5 billion in military construction funds to build parts of the wall, even though Congress refused to allocate as much money for border barriers as Trump wanted.

As the majority opinion by judges Clifton and Friedland explains, if Section 8005 does not authorize Trump's attempted diversion of funds, then the president would be in violation of the Appropriations Clause of the Constitution, which gives Congress exclusive control over the public purse. The Founders considered it essential to deny the executive the power to control the federal budget, thus preventing any one politician from being able to combine the powers of "the sword" and "the purse," as James Madison put it.

The majority's analysis of Section 8005 strikes me as compelling. The statute allows diversion of funds only for "higher priority items, based on unforeseen military requirements, than those for which originally appropriated…" And "in no case" may the the executive transfer funds "where the item for which reprogramming is requested has been denied by the Congress."

Far from being an "unforeseen" need, funding for wall-building was repeatedly demanded by the president over the last two years:

Defendants mistakenly focus on the assertion that [the Department of Defense] "could not have anticipated that [the Department of Homeland Security] would request specific support for roads, fences, and lighting." Even assuming that is true, the fact remains that DHS came to DoD for funds because Congress refused to grant DHS itself those funds. And when properly viewed as applying to the broader "requirement" of a border wall, not to DHS's specific need to turn to an entity other than Congress for funds, it is not credible that DoD did not foresee this requirement. The long history of the President's efforts to build a border barrier and of Congress's refusing to appropriate the funds he requested makes it implausible that this need was unforeseen…

The same history also makes clear that the funding in question was denied by Congress, which is an additional reason why Section 8005 does not authorize it:

Even if there could be doubt about how to interpret "unforeseen," it is clear that Congress denied this request…

Construing section 8005 with an eye towards the ordinary and common-sense meaning of "denied," real-world events in the months and years leading up to the 2019 appropriations bills leave no doubt that Congress considered and denied appropriations for the border barrier construction projects that DoD now seeks to finance using its section 8005 authority….

In sum, Congress considered the "item" at issue here—a physical barrier along the entire southern border, including in the Yuma, El Paso, Tucson, and El Centro sectors [at issue in this case]—and decided in a transparent process subject to great public scrutiny to appropriate less than the total amount the President had sought for that item. To call that anything but a "denial" is not credible.

As I have pointed out previously, the stakes here go far beyond the specifics of the wall issue. If the Trump administration can use terms like "unforeseen… requirement" to allocate funds for the wall, it—and future administrations—can use similar tactics to spend money on all sorts of purposes that Congress never authorized. This would go a long way towards concentrating the power of the "purse" and "sword" in the hands of one person—exactly the result the Founding Fathers hoped to forestall by giving Congress exclusive authority over appropriations. Conservatives who might be happy to see Trump do this to build the Border Wall will not be so thrilled if the next Democratic President uses similar tactics to build projects he or she believes are needed for the "Green New Deal" or other liberal policy goals.

The Ninth Circuit ruling was a 2-1 decision, with a dissent by Judge N. Randy Smith. It is potentially significant that Judge Smith is a Republican appointed by President George W. Bush. By contrast, two of the three judges who have ruled against the Trump administration in this case are Democratic appointees (the district court judge and Judge Friedland). Judge Richard Clifton, a George W. Bush appointee who coauthored the majority opinion in the Ninth Circuit, is the exception.

However, it is also notable that Judge Smith did not argue that Section 8005 gives the president the authority the administration claims. Rather, he merely contends that the plaintiffs in the case –  the Sierra Club and the Southern Border Community Coalition (an alliance of various liberal/progressive groups in the border area)—do not have the right to bring a claim against the wall-building project.

Smith contends that "[t]he majority has created a constitutional issue where
none previously existed" and that its analysis risks "turning every question of whether an executive officer exceeded a statutory grant of power into a constitutional issue." It is indeed true that the plaintiffs' claim turns on the correct interpretation of Section 8005. There is no violation of the Appropriations Clause of the Constitution if 8005 authorizes the president to divert the funds in question. But it is not true that the majority's analysis turns every dispute over statutory delegation into a constitutional question. That happens only in cases where exceeding statutory authority enables the president to spend money for purposes not authorized by Congress, thereby transferring a congressional power to himself. In many other situations where a president acts beyond the scope of statutory authority, there is no such intrusion on congressional authority, and therefore no violation of the constitutional separation of powers.

Because (in his view) there is no constitutional issue here and because he argues that Congress mandates that this sort of case be brought under the Administrative Procedure Act, Judge Smith concludes that there can be no "equitable" cause of action against the wall transfer. He concedes that it is possible to bring a case under the APA. But the plaintiffs in the case are, in his view, not the right parties to bring it, because the "zone of interests" protected by the APA, with respect to Section 8005, only covers "economic interests." The Sierra Club and other plaintiffs in this case  assert only "aesthetic, recreational, and generalized environmental interests."

I am not an expert on either equitable causes of action or the APA. So I will defer most of the heavy lifting on these questions to others with greater knowledge. It seems to me, however, that the majority's analysis of these issues is more persuasive than Judge Smith. I would add, also, that his distinction between "economic" and "recreational" interests seems flawed. The two are not mutually exclusive categories. To the contrary, recreation is a major industry and the ability to engage in recreational activities in a  given area is surely an asset with economic value. The fact that the groups in question do not lead recreational tours in the border area for profit does not alter the fact that the ability to do so qualifies as an "economic interest." If the construction of the wall undermines a local landowner's ability to raise crops on his land, that would surely qualify as an "economic interest," even if the owner in question did not grow the crops for profit, and had no plans to do so. The same goes for disruption of recreational activity.

Judge Smith's reasoning would not preclude all possible lawsuits against the wall, however. Even if the Sierra Club and other similar plaintiffs are not within the appropriate "zone of interests," there are many plaintiffs who surely do have such interests, such as local governments and private property owners who own land in the area whose use might be disrupted by the wall, and who use that property for purposes that go beyond nonprofit recreation.

The current ruling is only a decision to uphold a preliminary injunction blocking the funding diversion until the court of appeals can reach a final decision on the merits. However, the trial court judge in the case has recently issued a final decision on the merits, and that ruling is expected to be reviewed by the Ninth Circuit soon. The decision on the preliminary injunction makes it highly likely that the court will decide the same way on the merits, since "likelihood of success on the merits" is one of the criteria for issuing a preliminary injunction (and the majority makes clear they believe the plaintiffs deserve to prevail).

For reasons discussed in my earlier post on the trial court decision, the rulings in this case 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, but not those at stake  in this case), and whether the president has the authority to use eminent domain to seize property for border wall construction not specifically authorized by Congress. These issues may well be litigated  at least some of the many other wall-related cases pending before various federal courts.

The rulings in this case are the first to address the substantive issues at stake in the wall litigation. In June, a different 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 analyzed that ruling 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 significance of the standing decision is its potential impact on other separation-of-powers disputes between the president and Congress.

The Ninth Circuit ruling is another notable success for opponents of the wall. However, we are still in the early stages of what is likely to be a lengthy legal battle. It is not a good sign for the plaintiffs that the judges who have ruled on wall-related cases so far, seem to have split on ideological/partisan lines, with the notable exception of Judge Clifton. If the issue gets to the Supreme Court, that court, of course, has a 5-4 conservative Republican majority. If the justices also split along ideological lines, the plaintiffs will lose.

On the other hand, neither of the Republican judges who have ruled against plaintiffs in the decisions litigated so far (Judge Smith and the district court judge in the standing case), have done so on the merits. Both rejected the claims in question on  narrow procedural grounds (standing and "zone of interests" analysis) that would only bar a subset of wall plaintiffs, while clearly allowing lawsuits by others to go forward. Judge Clifton is the only GOP appointee who has so far ruled on the merits in any of the wall cases. And he ruled in favor of the plaintiffs.

UPDATE: In the original version of this post, I said that the judges in the majority in the Ninth Circuit ruling were both Democratic appointees. However, Judge Richard Clifton, who coauthored the majority opinion, was in fact appointed by George W. Bush. I apologize for the mistake (which I found myself, and quickly corrected) and have amended the post accordingly.

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  1. Judge Clifton is not a Democratic appointee. He was appointed by George W. Bush, just like Randy Smith.

    1. “Judge Richard Clifton, who coauthored the majority opinion, was in fact appointed by George W. Bush. I apologize for the mistake (which I found myself, and quickly corrected)”

      @JPS, I believe you just got memory holed.

  2. “in no case” may the the executive transfer funds “where the item for which reprogramming is requested has been denied by the Congress.”

    Construing section 8005 with an eye towards the ordinary and common-sense meaning of “denied,” real-world events in the months and years leading up to the 2019 appropriations bills leave no doubt that Congress considered and denied appropriations for the border barrier construction projects that DoD now seeks to finance using its section 8005 authority….

    This is an argument that Congress has reserved to itself the power to object to how the President allocates money appropriated by Congress without following the ordinary appropriations process (bicameralism and presentment).

    Under standard US law, Congress cannot reserve this power to itself. If Congress wants to limit how the President spends appropriated money then they need to make this explicit in the appropriation. Alternatively, they could pass (and approve over a Presidential veto) an amendment to the appropriation. Congress failed to do either here, so the Court was wrong to consider whether this request “has been denied by the Congress.”

    1. “If Congress wants to limit how the President spends appropriated money then they need to make this explicit in the appropriation. ”

      That is in fact how the appropriations process works in Congress. The don’t just appropriate a big pile of money for the DOD to spend as it wishes. Every dollar appropriated for the DOD is explicitly earmarked for a specific purpose / program within the DOD.

      Section 8005 is a general statute that lets the President reallocate $$ from X to Y under certain specific conditions. If those conditions are not met, the President does not have the authority to re-allocate the money.

      1. I take it you’ve never read an appropriation bill. It is not line by line specific. It is general allocations for general functions.

        1. No, Jesse, you’re wrong here.

          DoD appropriations are indeed line item – down to the number of planes.

        2. Even if what you said is true about allocations for general functions, Trump want’s to divert DOD funds to something that does not fall under any DOD general function.

          1. You don’t think securing the borders is a military function? Historical AND modern practice both suggest you are wrong.

            1. Securing the borders against military incursion is definitely a military function. But seeing as how the United States has not been invaded in force by a foreign power since 1812… and the last time we were invaded by a foreign power, it was the FBI rather than the military who captured them… I’m not 100% sure the military will be effective if tested.

      2. Yes, but that is not the argument being made. The argument is that Congress has reserved to itself the power to object to Executive decisions on how to spend money that has already been appropriated.

        That is not how appropriations works. If Congress wants to change the terms of the appropriation then they need to follow the legislative process, which means presenting a bill to the President.

        1. It’s still an open question whether, if Congress appropriates money for something, the President can choose not to spend the money and return it to the Treasury, instead.

          Diverting money appropriated for X to fund Y instead leaves X appropriated but not funded. Is that a violation of the appropriation power?

  3. The arguments made by these “judges” are nonsense. If the executive has the authority to use DOD money for a project, it has that authority whether or not Congress has debated giving (and denied) money separately.

    1. “judges”

      These individuals are Federal Judges confirmed by the Senate in accordance to our Constitution.

      Not “judges”.

      1. They’re political hacks who couldn’t care less about the Constitution. That’s how you get “judges” who find a right to sodomize another man’s rear end.

        1. “They’re political hacks who couldn’t care less about the Constitution.”

          Guess we shouldn’t have let W nominate so many, then.

          1. W was the biggest disaster for conservatism in modern history. You’ll get no argument from me on that.

            1. Nah. Backing Trump is going to turn out to be the biggest disaster for conservatives. W happened to be the guy sitting in the hot seat when the economy cratered, but he wasn’t the cause of it. Trump, on the other hand, is doing is best to kill it. Fortunately (so far), his best just isn’t very good, so we’ll see if he manages to do it before he gets sent packing.

      2. Quotes make sense when the judges overstep their authority and become legislatures.

    2. “If the executive has the authority to use DOD money for a project, it has that authority whether or not Congress has debated giving (and denied) money separately.”

      Except that’s not what’s happening here.

      Under the normal appropriation project, the President/DOD only has the authority to spend DOD money on X if Congress has explicitly appropriated money for X.

      However, there is a general statute that says that under certain conditions and only under those conditions, the president can take money that was appropriated for Y and spend it on X however, one of the conditions is that Congress can not have considered eclined to do so.

      1. That’s the thing: I’m looking at the particular National Emergencies power Trump invoked, right now:

        Section 2808. Construction authority in the event of a declaration of war or national emergency

        Not finding that clause anywhere. Maybe you can point it out to me, since you’re familiar with it?

        1. If you don’t think the language about national emergency is limiting, then you have an overdelegation problem, giving the President unlimited ability to reprogram DoD funds.

          If you do think it’s limiting, then the Dems not voting like the administration wants is not an emergency.

          1. The language about national emergencies refers back to the National Emergencies act, which delegates deciding whether there’s an emergency to… the President. And it allows Congress to cancel such declarations, subject to the presentiment clause. They tried, and failed, so the emergency stands.

            Do I think there’s an overdelegation problem here? Hell, yes! But, does the Supreme court? Not likely, non-delegation doctrine is pretty much dead.

            Best case scenario here for me is the Supreme court reviving it. But I don’t see that happening.

            1. Delegation hasn’t been much of a thing in the past 3 decades, but complete lack of limits other than a pro-forma certification is over even the most generous of lines.

              1. A philosophy I’m sure you find only in 2016 and definitely didnt apply to DACA.

                1. The work permits in DACA were indeed unauthorized. The rest was fine, though.

                  1. Well, fine under the conditions as they existed at the time.

                    DACA took a class of illegals and moved them categorically to the back of the deportation line, in much the same way that some other classes are categorically moved to the front of the line.

                    Now, at present, the line is at least 20 and possibly as much as 40 or 50 YEARS long. This is so because the statutes passed by Congress identify who is to be deported, but also define the process to be followed to deport, and caps the number of deportation hearings which can be held, and Court precedent requires that people get deportation hearings before being deported.
                    President Obama went to Congress and asked for authority to hold more deportation hearings, with the goal of deporting more people. The Congress was in Republican hands at the time, so they of course rushed to allow the President to deport more illegal immigrants. Ha, ha, j/k. They didn’t even bother to hold any hearings to consider the request.
                    This left him with the same situation as the previous 6 Presidents… more illegals already present in the country than he could lawfully deport, a situation that necessarily creates at least some illegals present who cannot be deported. DACA moved to fill some of the slots in that category with people who were not capable of intentionally violating immigration law when they were brought here. They ARE here illegally under current law, but they are the category most likely to benefit from a change in the law, if any changes are made, so keep them around long enough to benefit.

              2. There are limits though. Pretty clear fiscal limits, in fact.

                1. Name them.

        2. The propriety of the President’s invocation of §2808 wasn’t at issue in this appeal. This appeal and decision were about the invocation of §8005 of the DoD Appropriations Act of 2019 which reads in relevant part:

          “Provided, That such authority to transfer may not be used unless for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress:”

          1. What does “denied” mean in this context though? Expressly denied and passed as an act of Congress. IE, a law being passed that says “no funds will be used for law building”.

            Or implicitly denied, as in the President requested it, and Congress just chose not to act in the affirmative or negative for that request.

            1. The President requested it, and Congress refused. That is the “ordinary and common-sense” meaning of “denied” that the court refers to.
              What you describe isn’t a denial, it is a prohibition.

            2. You don’t need an expression prohibition. That’s nonsense. There is an infinity of things Trump may want to spend money on. Congress can’t list them all as prohibited.

              If it’s not appropriated in response to a request, the request is denied.

              This is plain English, not a tortured legalism.

              1. On the other hand, Congress likes the idea of spending on an infinity of things.

                1. No, the set of all things Congress likes spending money on is quite finite. Now, there’s definitely DIFFERENT things that different members of Congress like to spend money on, and a willingness to accede to another member’s interest in spending money in order to procure a favored spending item, but it’s still finite. Even the biggest of big spenders usually realizes that there comes a point where spending on X means not having any ability to spend on Y, and vice versa.

        3. The President has tapped several sources of funding. One was 10 USC §2808 to reallocate military construction funds, which requires declaring a national emergency and he did so on Feb. 15 of this year. Another was P.L. 115-132 §8005, the uncodified continuing appropriations bill from last fall (so you will not find it in the US Code, but can find it here). The latter gives access to up to $4B of non-construction military funds, but instead of a declared national emergency only requires a determination by the Secretary of Defense that such action is necessary in the national interest plus a bunch of other conditions. The ruling in the OP concerns a challenge to that action, contending that the bunch of other conditions were not met.

        4. We also lost the thrust of MatthewSlyfield’s point – there’s pretty clear Congressional disapproval of this funding action. In a case of Congressionally-granted past discretion, this would appear to be a salient, if not determinative, element to consider.

        5. The quoted decision mentions section 8005, not 2808. You are apparently looking in the wrong place.

  4. How about abolishing the Waffen Bush DHS entirely and using the saved money to put up the fence? The whole DHS came about because the Bush dynasty insisted on bombing… er… Saracen sand people on the other side of the planet instead of letting nuclear power provide energy. Those tribes then attacked the Pentagon and civilian targets. The “solution” was another Mauerschutzen bureaucracy that gulps down money and excretes paranoid hatred. Let it eat itself and excrete the Antifaschistischer Schutzwall instead.

    1. You want to eliminate a department of the US government to fund something that will not do anything to “protect” our border or stop illegal immigration.

      Conservative reasoning folks.

      1. Where’s your evidence that it won’t do anything to stop illegal immigration?

        1. There’s this recent invention called a “boat” that lets people approach the US from its coastlines. I understand the Cubans have mastered the use of such devices.

          Have you ever heard of the Maginot Line? Conclusive evidence that securing only part of the border, no matter how well armed and armored it is, does not stop undesired entrants into the country.

          There’s also this thing called a “jetliner” that can travel 30,000 feet above the ground. Some simple math, so simple even someone such as yourself can follow, would show that an 80-foot-tall wall still falls somewhat short of preventing people from arriving via this vector.

          Then, of course, there’s the huge stretches of land border that have no wall, no fence, and no guards, nor plans for any of those.

          In short, only a simpleton would believe that fortifying part of the border provides any net increase in security. (Plus, of course, the main problem is, and remains, all the illegals who are already within the borders of the United States. Preventing them from leaving helps us… how?)

          1. By that standard, why have any border checkpoints at all? No one is saying it’ll ELIMINATE illegal entry. But it’ll certainly reduce it, as would eliminating false asylum claims and harshly punishing those who use it.

            1. “By that standard, why have any border checkpoints at all?”

              By what standard?

              “But it’ll certainly reduce it”

              If a 0.00% reduction counts as a certain reduction, sure. Otherwise, no, it absolutely won’t reduce it, just relocate it.

          2. If you go right around the end of the wall where the US/Mexico land boarder ends at the Gulf of Mexico, you probably don’t even need a boat.

            PS That’s a pretty strained definition of “recent”.

      2. If you read him a little more closely, that’s not conservative reasoning, it’s wacko reasoning

    2. Hank… may want to look at the voter rolls on DHS before declaring yourself an idiot.

  5. Fuck you cut spending….oh wait that’s only for food stamps, my bad.

    1. Not all spending is created equal. Money spent on national defense is not the same as taking that money and giving Shaniqua an Obamaphone or Consuelo food stamps.

      1. This blog’s censorship board banned Artie Ray for mocking conservatives and has issued warnings about using “uncivil” language aimed at conservatives but repeated references to ‘Shaniqua’s Obamaphones’ and ‘Consuelo’s food stamps’ appear to comply with Volokh Conspiracy standards.

        Still wondering why strong law schools disregard the Conspiracy’s repeated suggestion that they emulate our weakest schools by hiring more movement conservatives?

      2. I guess it’s that time again :

        Barack Obama had nothing to do with “Obamaphones”. He did not create the program, change its services or expand its reach. The Lifeline benefit program for income-eligible consumers was created in 1984 under Ronald Reagan. Cellular phones were added under George W. Bush. When one women on local Ohio TV news credited the program to Obama, it was widely reported she was incorrect, but a racist trope was born.

        I’ve pointed this out to RestoreWesternHegemony before, Shaniqua and “Obamaphones” being a compulsive tic with him. But providing our RestoreWH with facts seems to have no effect. I guess someone with a taste for rancid maggoty meat is just gonna go with his appetite…..

        1. Its that time again.

          Obama expanded the program to cell phones and removed the 1 phone per household limit. He also auto enrolled for the program if the person was on any other supplement program, making the growth in the program larger and easier for fraud. You’ve been made aware of this multiple times yet you keep repeating your lies. Why is that?

          1. Obama expanded the program to cell phones

            No, I think grb is correct that this happened during GWB’s tenure. Obama’s FCC did expand Lifeline to broadband in 2016, maybe that’s what you were thinking of.

          2. ” You’ve been made aware of this multiple times yet you keep repeating your lies.”

            The only one lying here is you.
            Why is that?

            1. Tbh everyone bought into this. It doesn’t help there’s a viral video of a woman shouting with joy about her new “Obamaphone”.

              1. “Tbh everyone bought into this.”

                No, everyone didn’t.

          3. JesseAz,

            First, Obama did NOT expand the program to cell phones. Five minutes worth of research would have nixed that factoid (as if you care enough about true or false to bother). Second, the last time you peddled this crap I posted the FCC / Lifeline verbiage limiting the benefit to one per household (it’s still there). I did an extensive search for any hint the program had changed post-Obama back to pre-Obama and found (of course) nothing. There were multiple stories on Trump / House Republicans looking to kill the program altogether, but nothing like what you claim.

            I put in this work on the tiny chance you aren’t a (1) a liar, (2) a dupe, or (3) some combination thereof…..despite the fact that 1-2-3 is pretty much your default SOP.

            And then I ask you to post your sources. I then heard only silence. So lets ask again……..

            1. Hey grb,

              He heard it on Fox, or maybe from Limbaugh, so it must be true, facts be damned.

              1. Facts are rarely of interest to partisans.

  6. Oh, noes. If der Trumpfenfuhrer can’t build a wall, he, or more correctly, people who work for him who have some idea of what they’re doing, might have to try and come up with a plan that might actually reduce illegal immigration.

    Either that, or do nothing at all and just blame the Democrats for it. I wonder which path he’ll choose?

  7. Let me sum up the argument:

    “Because Orange Man Bad, therefore we hold any action he takes is not allowed”

    1. No need to read the opinion or even the OP. It’s a ruling against Trump so it must be in bad faith.

  8. If a President chooses to ignore a ruling of any Court, including the Supreme Court, is there any penalty? Has any sitting Supreme Court Justice expounded upon this topic in a book? That is, if, say, Abraham Lincoln deliberately ignored a ruling of the Supreme Court, would he face any penalty other than removal from office by a majority vote of the Senate?

    If Donald Trump, President of All Of Us, chooses to ignore a ruling of the Ninny Ninth, what penalty does he really face (other than the scorn of present-day, but not future, scholars)?

    1. Nullification. Always the sign of patriotism.

      1. That makes one more of a patriot than one who complies with extrajudicial court rulings. A real patriot in office would have kidnapped these “judges” and given them free helicopter rides.

        1. Calling for the murder of federal judges whose decisions you don’t like is apparently OK here.

          What isn’t?

          1. To be fair, this particular sad sack seems to be able to rereg immediately so I don’t know what the remedy is.

            1. “To be fair, this particular sad sack seems to be able to rereg immediately so I don’t know what the remedy is.”

              Helicopter ride?

              OK, maybe not. Civil commitment?

              1. Deportation back home to Russia (Assuming that’s not where he’s posting from)?

          2. An act of war or armed resistance isn’t “murder.” If Trump engaged in a military coup, it’s no more “murder” than the patriots during the Revolutionary War who killed British loyalists and soldiers.

          3. “Calling for the murder of federal judges whose decisions you don’t like is apparently OK here.

            What isn’t?”

            The term “slack-jaw,” for starters. The proprietor objects to that one.

            Or mocking conservatives (as Artie Ray Lee Wayne Jim-Bob Kirkland would assert had he not been banned by the Volokh Conspiracy’s Board of Conservative Censorship for that offense).

            But advocating dropping Trump-defying federal judges (or, one might infer, libertarians such as Prof. Somin who oppose bigoted, cruel, authoritarian, Republican immigration policies and practices) from helicopters? Thumb’s up from the Volokh Conspiracy censors.

      2. Remember when Obama just ignored the law in his Bergdahl transfer?

        What ever happened there?

        1. He’s no longer President. Find a USA who wants to prosecute.

        2. Which has what to do with anything.

          Do you think the fact that Obama did something you think was illegal justifies anything Trump does?

          Is that your idea of an argument? If so, how did you graduate from law school?

          1. “how did you graduate from law school?”

            Most people learn that “but they did it, too!” isn’t an excuse for wrongdoing by the end of GRADE school. Mom should have explained it by around age ten.

            1. Yeah, the difference is that your side NEVER holds your people accountable for their illegal actions. So yes, “they did it too” is an excuse.

              1. The first stupid mistake is assigning everybody a side.

                The second stupid mistake is making excuses for bad behavior.

                The third stupid mistake is posting your stupidity publicly.

                The fourth stupid mistake is not learning anything from prior stupid mistakes.

                Four strikes, you’re out.

          2. “Which has what to do with anything”

            I’m glad you asked.
            1. Besides ignoring the law demanding that Obama tell Congress before any releases, Obama violated the defense appropriations act, in appropriating money that was specificially denied in the act.
            2. Which is….almost exactly what Trump is being accused of here. (Although the wall wasn’t specifically denied in the act)
            3. Now, Obama violated the law because of the supposed “Emergency context”… (sounding familiar yet)? and because his Article Two duties superceded it. (hmmm).
            4. Of course, precedent matters for quite a bit…
            5. As do any consequences of violating the law. And Obama…didn’t seem to have any consequences for his supposed violation.
            6. SOOO….if one was to make an argument for Trump’s spending, Obama’s precedence here, and his very arguments make a very nice starting point.

            Something to consider.

            1. “And Obama…didn’t seem to have any consequences for his supposed violation.”

              Blame Trump for that one, too. Not ONE of the USA’s he installed pursued this obvious broken law?

  9. In the meanwhile, Trump will be building the wall. DOD can reimburse congress later on.

    1. Ghost, you think after a court says the purpose is unauthorized by Congress, another court is going to say to those who challenge property condemnations that it is a legitimate public purpose?

      1. I don’t think any court headed by appointee of the Kenyan Muslim whose name I won’t repeat in good company is going to uphold anything Trump does.

        1. Man, it must suck to hate reality so much.

        2. That’s it. Any forum that leaves someone like that in good standing is one in which I will not participate.

    2. “In the meanwhile, Trump will be building the wall. ”

      Soon enough, America’s betters will tear down any wall that is built. Bigoted, cruel, authoritarian immigration policies and practices do not prevail in America. Ask the Irish, Asians, blacks, Italians, eastern Europeans, Hispanics, other Asians, other Hispanics, etc.

      In general, the bigots don’t win in America, especially over time. The gays, agnostics, women, immigrants, atheists, and others have demonstrated that one.

      There’s no wall Trump could build that the liberal-libertarian alliance can’t knock over.

      But carry on, clingers . . . while you can.

  10. […] today, the Supreme Court issued a stay against a lower-court injunction blocking President Donald Trump from diverting military funds to build his border wall. At least […]

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