Border wall

Supreme Court Stays Lower Court Ruling Against Trump's Border Wall Construction

It's a win for Trump; but only on procedural grounds. The broader legal battle over the wall is far from over.

|The Volokh Conspiracy |

Earlier 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 for the moment, Trump can therefore continue to divert the funds for wall construction until the lower courts (and possibly the Supreme Court) issue a final decision on the case. The decision was a 5-4 split along ideological lines, with the five conservative justices voting to stay the injunction, while the four liberals all dissented. Three of the liberal justices would have denied the stay completely. Justice Stephen Breyer wrote an opinion indicating that he would have upheld the lower court injunction against actually using funds to build the wall, but would have permitted the government to "finalize the contracts" for construction. The latter, Breyer contends, would not cause any "irreparable harm" to the plaintiffs, and therefore need not be blocked by a preliminary injunction.

As is the usual practice with stay rulings, the majority issued very little in the way of an explanation. But it did indicate that "[a]mong the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary's compliance with Section 8005 [of the the 2019 Department of Defense Appropriations Act]."

In other words, this seems to be a purely a procedural ruling suggesting that the majority justices think 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—lacked the procedural right to challenge the diversion of funds. The Court may be referring here to Judge N. Randy Smith's argument in his dissent in the Ninth Circuit ruling on this issue, where he argued that only plaintiffs with "economic interests" at stake are legally permitted to challenge the funding diversion. In my view, Judge Smith's distinction between "economic" and "recreational" interests in dubious. The Court should have simply denied the stay, or at least adopted Justice Breyer's approach.

But if Smith's analysis is indeed the basis for the majority justices' ruling, it is notable that it does not address the underlying merits of the legality of Trump's plan to divert the funds. And, if the Supreme Court ultimately reverses the Ninth Circuit on this basis, the legal battle over the wall will be far from over.

In my view, Judge Smith's distinction between "economic" and "recreational" interests in dubious. But, even if the Supreme Court ultimately endorses his reasoning or something like it, there are plenty of other cases challenging the wall funding that have been brought by parties who do have "economic" interests, even on Smith's narrow definition thereof. They include local governments and private individuals who own property in the areas where parts of the wall would be built.

The lower court rulings in this case—and therefore, also, today's Supreme Court ruling—also do not consider a range of other important issues raised in the wall litigation. They 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 particular 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 questions are likely to be  considered at least some of the many other wall-related cases pending before various federal courts.

Thus, even if the administration ultimately prevails in this case, on the procedural ground highlighted by today's decision, the legal battle over the wall is going to continue, and these procedural considerations will not prevent many other plaintiffs from challenging the wall diversion.

However, the fact that the justices split along ideological lines on this procedural issue may presage a similar division on the merits, should the Supreme Court ever address the latter. If so, that would be a bad sign for opponents of the wall, since the Court has a 5-4 conservative majority.

As I have pointed out in previous posts on this issue (e.g. here and here), the stakes here go far beyond the specifics of the wall issue. If Trump can use a combination of "emergency" powers and other dubious legal maneuvers to divert funds for wall construction, future presidents can do the same thing for all sorts of other expenditures that were never authorized by Congress. Conservatives who might cheer Trump now will not be so thrilled if the next Democratic president uses similar tactics to build projects he or she  claims are needed for the "Green New Deal" or other liberal policies. More generally, a victory for Trump would concentrate extensive new power in the hands of the president and undermine Congress' control over the power of the purse.

NEXT: Mayor Pete Wants To Destroy the Gig Economy in Order To Save It

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    1. Only two of them.

      So far.

    2. This is hilarious after you’ve spent the last 2 years trying to deride people from pointing out “Obama judges.” God what a joke you are.

    3. MAGA!!!

    4. “Trump judges.”

      Imagine how many more there will be after Six More Years!
      #winning

  1. Shorter Ilya,

    “Orange Man, while not currently bad, will ultimately found to be so.”

  2. We live in an age where courts can tell the President when and how he can spend government money.

    Strange times.

    1. But only Trump. If Obama had diverted health care funds to treat HIV among gay men, the left would be applauding him.

      1. Obama diverted money to pay insurance companies $10s of billions cost-sharing reimbursements that were never authorized by Congress and that a judge found to be illegal. Mooted when Trump ended payments.

        Obama diverted money to ship pallets of cash to Iran in the middle of the night.

    2. Actually it’s Congress who gets to tell him how to spend money. Because, Constitution. The courts tell him he can’t spend money that hasn’t been appropriated by Congress at least they’re supposed to.

      1. Except he has that right to spend that money on that, thanks to Congress itself. They gave the president the right to declare a national emergency and use the funds for that purpose.

        If you want to complain about Congress giving up rights it has, I’m with you. That doesn’t change the fact that this is legal.

        1. If you ignore non delegation, are okay with vague laws, and torture dictionary words.

          1. I’m perfectly happy to revive non-delegation and ban vague laws. So when will the courts declare every Federal regulatory agency, their actions over the last eighty years, and the statutes that authorized those acts, unconstitutional?

            1. Precisely. People are acting as if this were novel behavior by Trump. It’s part of a 60+ year process of Congress casting off its lawmaking by issuing general desires and then having the executive branch dictate into existence the actual laws under the sophistry of “enforcement”.

              1. The administrative state is not the same thing as what Trump is doing.

                1. Supine, cowardly congress casting off decisions to implement and spend is, however, the same.

                  1. Playing the ‘I’m so extreme all things are equally bad in my eyes’ is saying a lot about you; not a lot about the legitimacy of Trump’s actions here.

          2. When before this has delegation by congress ever been held to include delegation of the power of the purse? Not a lawyer, so for all I know maybe it has happened all the time. But I don’t see an emergency powers situation as an authorization to seize the appropriations power against an express denial by congress.

            1. Technically the monies had already been appropriated. The emergency declaration provides for redirection of the monies under certain circumstances and within certain bounds. The wall is certainly a defensive fortification, so using already-appropriated military construction money is not “tortured” redefinition of words.

              Blame Congress for writing this emergency powers act so poorly in the first place.

              1. Congress appropriates for a purpose. DoD funds are especially particularized. Check out the last DoD approps bill, it’s down to the individual bomb.

                1. Yep. And then there’s a provision to redirect certain funds under certain conditions, as determined by the President.

                2. 10 U.S.C. § 2808 – U.S. Code – Unannotated Title 10. Armed Forces § 2808. Construction authority in the event of a declaration of war or national emergency

                  1. That’s not what this case is about.

                    Congress not voting like you want isn’t an emergency

                    Your ‘Technically the monies had already been appropriated’ is still wrong.

                    1. “Congress not voting like you want isn’t an emergency”

                      Fortunately that wasn’t the rationale for the emergency declaration.

                    2. “Congress not voting like you want isn’t an emergency”

                      A massive increase in illegal border crossings, OTOH…

                    3. It seems that an emergency is whatever a President says is an emergency, since the EPA provides no guidance as to what may constitute an emergency, excepting that Congress can terminate an emergency declaration.

                    4. Brett, Trump declared the emergency after Congress wouldn’t give him what he wanted. Your hiding behind formalism doesn’t negate that fact.

                3. That’s only true for some types of contracts, of which there are many types.
                  For example, you have contracts where the government pays $X for Y items, or pays for Y items at cost+$x margin, or even pays $X and will accept whatever they get (subject to review).

                  Government contracting is complicated – enough so that DoD Contracting Officer is a specialty job.

                  1. Yes, I am aware of how government contracting terms can vary.

                    That does not change the fact that this money was specified for something else by Congress.

                    1. And yet, on 18 separate events in the past, this type of money was reallocated, under the NEA, to do different construction projects, which were not explicitly specified for by Congress.

                    2. Technically the monies had already been appropriated

                      That’s the issue I was taking. Because that’s BS.

                      You’re arguing a different thesis; also BS, that there are no cognizable limits to an emergency declaration.

              2. The wall is certainly a defensive fortification,

                Absurd beyond belief.

                Are you going to describe asylum seekers as invaders next? Probably.

                1. Trump had all the authority he needed on day one to build the wall and deport the invaders.

                  Article IV, Section 4
                  “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against invasion”

                  The Constitution *obligates* the federal government to prevent invasion.

                  The Constitution obligates Trump to “take care that the laws be faithfully executed” too, including immigration laws.

                  Trump is the first President in *decades* to actually even *attempt* to uphold the constitution with regards to immigration.

            2. Show me a link to exactly where and when you called out Obama for the much more egregious actions described by mpercy and then I’ll think you have an ounce of credibility.

              Otherwise you remain the obvious partisan hack you are.

              1. What funds did Obama reprogram against Congress’ clear intent?

                Your attempt to create an equivalence just shows how much worse this is.

                1. When he used government funds to release the Gitmo 5 in exchange for a Bergdahl….

                  Yep, that’s as clear as it gets.

                2. There’s also the billions in Risk Corridor funds that were paid out in explicit violation of the law.

                  I believe you argued that was A-OK and necessary though.

                3. “What funds did Obama reprogram against Congress’ clear intent?”

                  Congress didn’t ever allocate funds for the “risk corridor” payments.

                  1. You’re looking in the wrong place – where did Obama get the money from?
                    Hint: Authorization-based programs are not the same as appropriation-based programs.

                    https://en.wikipedia.org/wiki/Patient_Protection_and_Affordable_Care_Act#Risk_corridor_program

                    1. It was stolen from the US Treasury

      2. Yes Congress does get to tell the President how to spend money. So if they were of a sufficient mind to tell him not to do this right now, they could.

        The issue in the case however is whether Congress has already authorized and delegated the ability to build a wall.

        Since Congress consistently aims to do exactly that, to delegate power (and thereby abdicate responsibility) to the administrative state in all matters of legislation and spending, and since the Courts consistently allow it, it will be especially interesting to see if a new rule is created “because Trump.”

        1. Those in favor of a regulatory state, where Congress issues meta laws, then hands it to the executive branch to issue the actual laws you get fined and jailed for, often argue that, while kind of violating the spirit of the Constitution, Congress can and does ride shotgun watching it, and so it is ok.

          How’s that shotgun oversight going for you? Strong as you claim

          1. They have to rely on the courts to claw back power. One actual claim made in favor of the regulatory state oversight: “We (in Congress) can just call them up if we don’t like what we’re seeing.”

            How’s that working out?

            1. When your argument relies upon the regulatory state being unconstitutional therefore Trump can ignore the Constitution, you may have lost perspective…

              1. Let’s re-rail your train. Trump is just going nuts with general wishes from Congress, that he is supposed to implement, the what and actual spending part.

                Some are finding fault with Trump and use legal arguments that would also apply against the regulatory state, or are laughably used to justify its constitutionality (Congressmen can call them up to change their course, Congress can change the law), which are clearly miserable failures as control mechanisms over the executive branch’s “implementation” of the law AKA general wishes of Congress.

                1. It’s not general wishes, it’s specific intent. That’s where you’re windmill tilting anti-administrative state parallel fails.

                  Administrative agencies screw up and the courts review what they do all the time. Congress countermands what they do all the time. There are guardrails, even if you wish the road didn’t exist.

                  In this case, Trump wanted Congress to do something, and when they didn’t he tried for an end-run around their specific intent by ignoring some additional specific language in another law. If allowed to continue, this isn’t a road with guardrails, this is just Congress getting ignored.

                  1. The guard rail Congress put into the law was that if they didn’t think it was an emergency, they could pass a joint resolution subject to a presidential veto to cancel it. That was incredibly stupid of them, because it means they need a veto-proof majority in each house to police the abuses. But:

                    1) Stupidity on the part of Congress is not unconstitutional.
                    2) Delegations of legislative power to the executive that can only be withdrawn by Congress with a veto-proof majority have been upheld by the Supreme Court.

                    Now, regarding #2, the relatively obvious answer missed by the courts is to simply rule that insofar as Congress has an implied power to delegate legislative power, the legislative power remains limited by the need to have the consent of both houses of Congress. So a simple majority in either house should be sufficient to prohibit any attempt by the Executive to use delegated legislative power, since it is sufficient to prevent the Congress itself from using undelegated legislative power.

                    1. Actually, I have to correct myself.

                      Congress was not incredibly stupid. Instead, the Supreme Court was, banning single-house nonconsent in INS v. Chadha (1983). Thus, the problem here is not that the courts failed to contemplate the obvious answer, but that it quite improperly neutered Congressional oversight of its own delegated powers.

        2. Under the emergency powers act, Congress must fast-track a vote to overturn the declaration if someone files such a motion. As I recall no such vote passed. That’s on Congress.

      3. If you are proposing to repeal the Emergency Powers Act and other laws that give the Executive wide discretion to spend public money, I’m on board. But I am not on board in carving out a special exception for Trump, only for such abuse to continue the next time a Democrat Party president gets into power.

        1. Only when they are passed without an intelligible guideline.

          There is no way to judge an emergency, so that is not a legal delegation. If there are proper principles in the legislation, there is proper delegation. It’s a stupid law that a non partisan court would strike in a second.

          What are the limits of action on this law? Anything the president decides is an emergency?

          1. Again, I don’t disagree. I’m just not going to support Trumplaw.

            1. Except it isn’t ‘Trumplaw’, if anything, it’s ‘Fordlaw’. And it existed in the books for over forty years.

              But hey, ‘Orange man bad!’, right?

          2. As I read it, as a layman, it certainly seems that the criteria is anything the president declares to be an emergency unless Congress overturns any such declaration.

            1. Doesn’t that seem to go against separation of powers to you, a layperson?

              1. It would be had congress delegated their power in such a sweeping way. But (as a layperson) it seems they did, separation be damned.

              2. All delegation of legislative power to the executive goes against separation of powers.

                The problem is simple enough; you’re someone in favor of censoring Nazis who is objecting that censoring Democrats is different because they aren’t Nazis. When others point out that the problem is allowing censorship, that there is no objective principle that can stop established censors from censoring Democrats, you complain that they’re extremists who want to allow Nazis to go uncensored.

                Well, we might be extremists, but the whole separation-of-powers problem here is you’re allowing delegation of legislative power to the executive. Disallow that, and the problem goes away.

          3. “Intelligible guideline” is an unintelligible guideline, as fully contemptible as the famous “I know it when I see it” standard, inherently impossible for a “non partisan court” to apply.

        2. I’m not doing because of Trump. I’m saying the law is inadequate and wouldn’t be enforced.

      4. 10 U.S.C. § 2808 – U.S. Code – Unannotated Title 10. Armed Forces § 2808. Construction authority in the event of a declaration of war or national emergency

      5. Because, Constitution

        Published orthodoxy about the non-orthodoxy of rapidly changing freeform speech on the Internet states there should not be a comma in this form.

  3. This is actually quite a good decision. Standing is key here, and you need to demonstrate a real harm. A “recreational and aesthetic harm” makes a mockery of the entire idea of standing. An aesthetic harm….seriously?

    I don’t like it because it doesn’t look good? It offends my sense of beauty? (Even if I’m nowhere near the action). You could literally sue for anything, anywhere, and get standing under some vague concept of aesthetic harm. I could sue the Sierra Club for bringing the suit, because their suit offends my aesthetic sense with their perverse logic for standing.

    1. I don’t see aesthetic in the article. They mention recreation. Which is a harm, if you lose a space that you had used recreationally.

      Did you just make it up?

      1. Perhaps you should read the background. IE the 9th circuit court ruling.

      2. “I don’t see aesthetic in the article. They mention recreation. Which is a harm, if you lose a space that you had used recreationally.”

        …yet they advocate doing so if you find a rare insect on that land…

  4. If congress wants to control this money more precisely, congress can amend or repeal the National Emergencies Act. Nothing undermines congressional power here. Congress itself empowered this action.

    1. Nothing undermines congressional power here.

      That seems mistaken. The congressional appropriation power, exercised in the negative, is not subject to veto, and thus needs no super-majority. If even one house of congress doesn’t want to fund something, it just doesn’t do it, and nobody else can say otherwise. But apparently, if the Supreme Court authorizes this kind of money shifting based on emergency claims, congress by itself cannot get back the full extent of its appropriations power. Instead, it must either get the president’s cooperation to avoid a veto, or restrain him with a veto-proof super-majority. So congressional power of the purse has indeed been notably undermined.

      1. Congress passed the National Emergencies Act. They can repeal it tonight if they can get the votes. They can pass a bill prohibiting any funding for walls if they can get the votes.

        Your complaint is that you can’t get your way because your way doesn’t have enough votes.

        1. No, Ben. My complaint is that the power delegated by the constitution requires not any votes, nor even the consent of both houses of congress. Whereas, the power just re-delegated by the Supreme Court requires both the consent of both houses of congress, plus a super-majority of votes. See the difference?

          I’m surprised and disappointed Gorsuch and Roberts went along with this. I expect it from the other three hacks.

          1. 10 U.S.C. § 2808 – U.S. Code – Unannotated Title 10. Armed Forces § 2808. Construction authority in the event of a declaration of war or national emergency

            (a)  In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act ( 50 U.S.C. 1601 et seq. ) that requires use of the armed forces, 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.

            (b)  When a decision is made to undertake military construction projects authorized by this section, the Secretary of Defense shall notify the appropriate committees of Congress of the decision and of the estimated cost of the construction projects, including the cost of any real estate action pertaining to those construction projects.

            (c)  The authority described in subsection (a) shall terminate with respect to any war or national emergency at the end of the war or national emergency.

            1. In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act ( 50 U.S.C. 1601 et seq. ) that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects,

              The border situation does not require the use of the armed forces, and the wall is not a military construction project.

      2. Suddenly the left is on board with separate appropriations bills as a power of the purse method of stopping the funding of already-authorized programs.

        #117 of 214 fair weather friends situational ethics “discoveries”

        1. Krayt, congress specifically voted against what you are calling an already-authorized program. After they voted against it, it wasn’t authorized anymore, Not that it ever was authorized, in fact.

          1. Congress already did this when they wrote “10 U.S.C. § 2808 – U.S. Code – Unannotated Title 10. Armed Forces § 2808. Construction authority in the event of a declaration of war or national emergency”

            They set forth in the Emergency Powers Act that a President can declare an emergency. There’s no guidelines on what constitutes an emergency, except that Congress can terminate an emergency declaration.

            Having declared such an emergency, in 10 U.S.C. § 2808 Congress clearly authorized already-appropriated military construction money to be repurposed for other military construction purposes (including real estate actions). So all that Trump needed to do is frame wall construction as necessary military construction.

            The only quibbles here are the nature of the emergency–but Congress has not terminated the declaration–and whether the wall can really be considered military construction. I don’t find the latter to be a stretch of the imagination at all.

            It may be stupid and unnecessary and sets a dangerous precedent, but it does not seem to be anything other than what Congress has allowed–EXPLICITLY ALLOWED–when it wrote the law.

            1. mpercy, you keep going back to the emergency powers act, as if you think congress can pass a bill to amend the constitution. The constitution puts the power of the purse in the congress. That is where it ought to stay. Once congress rejects a specific appropriation, that should be the end of it. No workarounds.

              If, when this issue is completely adjudicated, it turns out Roberts and Gorsuch are okay with letting Trump get away with this, then they are indeed partisan hacks. I had hoped for better from both of them.

              This kind of unprincipled lunge for power undermines government. Partisans who ignore principles end up without any means of controlling each other’s abuses except the threat of retaliation—which in practice is not a means to limit abuses, but to multiply them.

              1. Yes, that should be the end of it. Wake me when the Supreme court comes to agree with that, I’ll party.

                In the mean time, what we won’t accept is non-delegation only applying to Republican Presidents.

              2. But they did appropriate the money, AND they gave the executive the power to divert previously appropriated funding to different projects in the same class (specifically, the previously appropriated military construction monies can be retargeted to other military construction projects in light of a declared emergency). There’s no new appropriation being made, and Congress already explicitly provided for the re-purposing of the money in a declared emergency.

          2. Please point to the vote and law, that specifically disallowed using these funds, under an emergency, to build a wall.

            1. When Congress refuses to approve a specific funding request it is disallowing the use of funds for that purpose.

              It is impossible for Congress to explicitly disallow absolutely everything the President might want to spend money on. Should he be allowed to have the government buy him a new set of golf clubs because Congress didn’t explicitly prohibit it?

              Your argument leads to totally absurd results.

  5. Libertarian means that you defend near infinite expansion of executive power, if it’s a Republican.

    At least in Reason comments.

    1. Congress created the “near infinite expansion of powers” decades ago, and Presidents have used them for decades.

      This is not anything new – at least, not to anyone that doesn’t chant “Orange Man Bad”. If you’ve read even a fraction of the comments, you’ll see that many people are on board with the idea of repealing the Emergency Powers Act, and all of its similar delegations of authority to the Executive. But noone but the most blatant partisan is on board with allowing one party to use these “expanded executive powers” while preventing the other party from doing it.

      1. I wasn’t born yesterday, Toranth. Were the Senate also under the control of Democrats, none of these habitual Trump backers would be, “. . . on board with the idea of repealing the Emergency Powers Act.” How can we be sure? Because if Trump backers would do that, the Senate would be doing it right now.

        By the way, can you think of any instance where a Democratic president used the Emergency Powers Act in the face of an express denial of appropriation by congress? If you can’t, I don’t think your pretense of even-handed opinion is forthright.

        1. No, Obama just granted quasi-legal status to “Dreamers” because “Congress wouldn’t do its job,” with its “job” being to legalize every third worlder on our soil.

          1. Ding ding.

            Congress voted NO on the DREAM act or substantially similar variants of it some eleven different times.

            Obama: “I have a pen and a phone, hold my beer”.

            1. Obama acted within existing defined strictures on executive power – the DREAM act was a more sweeping thing than what Obama was able to do on his own.

              Trump is declaring an emergency specifically to ignore what Congress intends.

              1. The DASA part of Obama’s actions was stricken down right quick.

                How is it that Obama can provide DACA protections by executive action and Trump cannot take it away?

                1. There’s no injury giving people something you hadn’t before; there is injury taking something away that you had given before. It generally takes due process to take something away from people once offered.

                  1. Fine. We’re giving people a wall. No injury.

                    1. That’s not the question, AL – the question was ‘How is it that Obama can provide DACA protections by executive action and Trump cannot take it away?’

                      The wall isn’t problematic due to any abrogation of individual rights.
                      Well, not yet – property condemnation hasn’t happened yet.

                  2. What? So if we cut welfare, it takes due process to make that happen because we’re ‘taking stemming away’?

                    No.

                    1. We’re talking about executive action, not legislative.

              2. “It’s legal when I support it”

                Clarified your comment, Steve.

        2. First off, while I cannot speak for others, I can point out to you one Trump supporter that is quite on board with the idea of repealing the Emergency Powers Act – Me. I’ve said so for a while, ever since this issue first arose.

          Also, what is a “express denial of appropriation by Congress”? Did Congress pass, and the President sign, a bill to prevent this expenditure, as described in the EPA? Did Congress pass a law to modify or overturn the EPA?

          No, Congress did not. The law already passed does not suddenly disappear because Congress did not pass a bill expanding it, or doing something similar to what the law authorized.
          Does the US government grind to a halt every time a proposed spending bill fails to pass? If not, why would that “express denial of expenditures” not override existing expenditure bills?

          1. I am also on board with Congress repealing this act and generally for Cingress to stop handing off their power to the executive. I had a rant here a few weeks ago about how Congress write laws full of “The Secretary shall determine…” and “When the Attorney General determines…”

            When Trump tries to use the clear explicit wording of the law–the power the Congress explicitly handed the President–and then Congress complains about Trump and sues Trump for use the law, it pisses me off. At Trump sometimes for doing stupid things even though they’re legal, and for Congress for having set up the situation in the first place.

            For another example:

            8 U.S. Code § 1182. Inadmissible aliens

            (f) Suspension of entry or imposition of restrictions by President

            Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

        3. There are a few examples. Admittedly, the emergency powers act wasn’t used. Others actions occurred

          The largest I can think of offhand is the risk corridor program, which was specifically not funded, and yet in 2015 moneys were paid out to it in violation of section 1341 of the ACA.

  6. There’s no reason to expect Roberts and Co. would allow a liberal president to shift funds in a similar way, citing the well known legal doctrine of “it’s not illegal if Republicans do it.”

    1. Have you read the law? See 10 U.S.C. § 2808, go read it, then come back and tell me what part of it Trump is breaking? I’d fully expect SCOTUS to allow any President to follow the law as it is written.

      1. In that law you keep citing, Congress included the word “Emergency.” That word has to have some meaning besides “Whatever money the President wishes to spend that has not been appropriated by Congress .” And the interpretation of that word and that statute, should it ever come to that in this case, is entirely and properly the purview of the courts. So if the courts ever decide that the situation at the southern border doesn’t qualify as an emergency in any common or legal understanding of that word, then that would be the part of the law that Trump is breaking.

        1. The long history of “Emergencies” detailed by Presidents has shown the word means whatever the President wants.
          Take a look at some of the things that previous Presidents have declared as “emergencies” and spent money on. Money laundering? Bird habitats? Shipping prices?

          For a court to approve of decades of other Presidents making “emergency” claims, but then overturning this one would be a great example of TrumpLaw – the mysterious field of Law that applies only to Trump.

        2. That’s because that’s what Congress said. The President is authorized to determine (at his discretion, absent any other limiting factors in the law) if a state of emergency exists, and declare the emergency. Congress responds and can negate the emergency by fast-track actions, or can terminate it at any time.

          But once the emergency is declared–I suggest you examine the list of previous and currently outstanding emergency declarations, few of them are “emergencies” in the normal sense of the word–certain powers have been granted. One is to redirect appropriate military construction money to emergency military construction.

          50 U.S. Code § 1621. Declaration of national emergency by President; publication in Federal Register; effect on other laws; superseding legislation

          (a) With respect to Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such national emergency. Such proclamation shall immediately be transmitted to the Congress and published in the Federal Register.
          (b) Any provisions of law conferring powers and authorities to be exercised during a national emergency shall be effective and remain in effect (1) only when the President (in accordance with subsection (a) of this section), specifically declares a national emergency, and (2) only in accordance with this chapter. No law enacted after September 14, 1976, shall supersede this subchapter unless it does so in specific terms, referring to this subchapter, and declaring that the new law supersedes the provisions of this subchapter.

        3. “In that law you keep citing, Congress included the word “Emergency.” That word has to have some meaning besides “Whatever money the President wishes to spend that has not been appropriated by Congress .””

          It would be nice, wouldn’t it?

          Congress, of course, didn’t do that, though.

          They could always fix that problem or just repeal the legislation. But if Congress has no apparent limits on emergencies, it’d hardly the fault of the executive.

  7. I think a border wall is unAmerican, but it’s clearly something that could be considered part of a national defense plan.

    1. A border wall to secure sovereignty is unAmerican? LOL

    2. For sure, CE—by a Chinese emperor circa 200 BC. Otherwise, not so clearly. See also: Maginot Line.

      1. Israel put up a fence to deal with Palestinian terrorism. I bet there was no drop, at all, in the number of attacks afterwards…

      2. The Maginot line worked, for its directly intended purpose, which was preventing the Germans from crossing the Maginot line. It acted as a force multiplier at the line. The Germans ended up going around it.

        The major issue with it was the line wasn’t extended, and the French defense forces weren’t in place to deal with the Germans where they should’ve been expected.

  8. Protecting the integrity of the border is one of the most fundamental duties a president can perform. Yet in this world its a firestorm of controversy while using taxpayer money to give sex change drugs to children or legalizing intentionally spreading AIDS bats hardly an eyelash. Strange times we live in.

    1. This country now has millions of Marxist leaning subversives within. And that is a problem.

      1. It’s not a problem if you have any faith in your own convictions being able to carry the day.

  9. “They include whether the situation at the border qualifies as “national emergency” under the National Emergencies Act of 1976 ”

    If there were some sort of criteria in the statute for determining if an ’emergency’ was really an emergency, this might be a proper subject for litigation. But, as the only definition of “emergency” in the NEA boils down to, “When the President decides there is one.”, (And Congress doesn’t override him complying with the presentiment clause, of course.) I don’t see any basis for the courts sticking their nose into that question.

    The second question seems more of an appropriate topic for the courts to tackle.

    “If Trump can use a combination of “emergency” powers and other dubious legal maneuvers to divert funds for wall construction, future presidents can do the same thing for all sorts of other expenditures that were never authorized by Congress.”

    This is a fair complaint, and if you were proposing that the NEA be repealed, I’d be fully on board. But, you don’t seem to be, and the Democrats absolutely aren’t on board with that.

    No, all that’s proposed here is more TrumpLaw, and I’ll never be on board with that.

    1. With another Dem in office everybody will fall in love with excessive Executive Power again and Ilya will revert to posting an occasional halfhearted token protest rather than the constant emotional diatribes he’s doing now even though they’ll be abusing the power 10x as much.

      So all this flirtation with restraining the Presidency in and of itself is along with much of politics, just hot gas. Its about making Drumpf look bad not concern about some structural defect in the balance of power and everybody knows it. Go out and get some ice cream rather than waste your life speculating on this kabuki theater.

      1. Barack “I’m a law professor who specializes in the Constitution” Obama would have made this situation even worse for the left, had he not gotten stuffed on this.

        Remember it was his policy that, if Congress created a program with funding, that that implied he could spend the money and that separate congressional authorizations for money (increasing the debt cap in that case) were irrelevant because the initial law was sufficient to trigger the money as a valid US debt, which the Constitution requires to be paid.

        1. That is some tortured thinking you got there, Krayt. You think increasing the debt cap is, “separate congressional authorizations for money?” It is a separate authorization to raise money, not to spend money. The debt cap was all about covering expenditures already separately and specifically authorized.

    2. If there were some sort of criteria in the statute for determining if an ’emergency’ was really an emergency, this might be a proper subject for litigation. But, as the only definition of “emergency” in the NEA boils down to, “When the President decides there is one.”, (And Congress doesn’t override him complying with the presentiment clause, of course.) I don’t see any basis for the courts sticking their nose into that question.

      The basis is that a delegation of power needs to have clear guidance by law to limit Executive discretion. If there is no guidance it is an unconstitutional delegation. If the law is as you say that is unconstitutional delegation.

      1. Great! Then let the Courts actually rule that the Act is unconstitutional, rather than saying that *just this once* the President cannot declare *this* Emergency.

        I would love to see Congressional delegation to the Executive severely curtailed. Make Congress responsible for their laws, and we might actually see them think a little before passing bills.

        (Probably not, though)

        1. That is what I’m arguing. A lot of people are against this and many arguments have been made. You can’t counter one person’s argument with a complaint against another person’s argument.

        2. Toranth, there is always a distinction to be made between laws which are always unconstitutional, and laws which are unconstitutional as applied in a particular case. That is routine, everyday stuff.

          1. Your statement is trivially true, but also irrelevant.
            If the delegation of Congressional spending authority to the Executive on extremely vague conditions is constitutional, then it is constitutional here the same as it has been in the dozens of previous cases.

            If it is not constitutional, then it is not constitutional in all cases.

    3. “If Trump can use a combination of “emergency” powers and other dubious legal maneuvers to divert funds for wall construction, future presidents can do the same thing for all sorts of other expenditures that were never authorized by Congress.”

      If only Congress hadn’t granted this power explicitly.

      (a)  In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act ( 50 U.S.C. 1601 et seq. ) that requires use of the armed forces, 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.

    4. Brett, that is quite a method for statutory interpretation. If a common English word like “Emergency” isn’t given a specific definition in the statute, it can mean anything the President says it means.

      1. It can if the law says the President decides when there is an “emergency”.

      2. Alpheus, it means EXACTLY that.

        Perhaps the entire law should be repealed. But “Well, only Trump cannot do this” is not going to pass muster.

  10. As much as I have zero support for the border wall which Trump proposes, as I think it will do absolutely no good at all, I think SCOTUS made the correct decision: allowing the contracts to be drawn does no harm to either the government or the plaintiffs, whereas not allowing them to proceed could harm the government. The problem is, of course, the government: Congress needs to quit abdicating it’s responsibility, whether it’s Trump or any other president, and take back the power it has been shirking and quit letting the Executive run rough-shod over the nation.

  11. ” If Trump can use a combination of “emergency” powers and other dubious legal maneuvers to divert funds for wall construction, future presidents can do the same thing for all sorts of other expenditures that were never authorized by Congress. Conservatives who might cheer Trump now will not be so thrilled if the next Democratic president uses similar tactics to build projects he or she claims are needed for the “Green New Deal” or other liberal policies.”

    Agreed. Obama said “Elections have consequences. And at the end of the day, I won. So I think on that one I trump you.” he told ” he told then number two Republican Rep. Eric Cantor. That came back to bite them.

    Obama said “We’re not just going to be waiting for legislation…I’ve got a pen and I’ve got a phone…and I can use that pen to sign executive orders and take executive actions and administrative actions.” That came back to bite them.

    Democrats in the Senate went nuclear for all but SCOTUS confirmations. That came back to bite them.

    Democrats made plans to go nuclear for SCOTUS, too, assuming Sec. Clinton would win and that Democrats would gain the Senate majority they expected. Tim Kaine said “If these guys think guys think they are going to stonewall the filling of that vacancy, or other vacancies, then a Democratic Senate majority will say we’re not going to let you thwart the law,”…that came back to bite them.

    So far I think Trumps biggest NEW abuse is this emergency declaration. Much of the other stuff is just doing the same things that Democrats have already been doing. And he can’t even undo Obama’s excesses without getting dragged into court and having to wait until SCOTUS says “He’s within the law as it’s written.” most of the time.

    If Congress doesn’t want the emergency powers act to be abused, they will have to rewrite it to avoid this sort of abuse. Instead of abdicating their responsibilities like Congress tends to do.

  12. This blog’s comentariat sure do seem kinda weak in the libertarian area.

    1. Does “libertarian” not include belief in the rule of law?

      1. Apparently, it’s all about executive expansionism now.

        1. Well it’s certainly about preserving our sovereign borders. Do you really think we will have any vestige of libertarians left if a hundred million very non libertarian migrants come here and the democrats get most of them on the dole? And that’s assuming we aren’t rapidly bankrupted in the process.

        2. Executive “expansion” of powers Congress explicitly wrote a law to grant to the Executive? I’m not sure you understand the cause and effect in these events.

          You are blaming the wrong group here. Try blaming Congress for passing those laws in the first place, since that is what expanded executive powers.

          1. The law as you define it is a blank check. That goes against both what Congress intended and the Constitutional distribution of powers.

            1. On the contrary, Congress did intend to write a blank check. A check they could selectively refuse to honor if they didn’t like what it was spent on, but still, a blank check.

  13. This article like most others has the tendency to conflate the section 8005 transfer with the emergency declaration to 10 USC 2808 moving of funds within the military construction budget.

    It also ignores the issue of what Congress is up to. The Democrats version of HR2698 sections 8005 and 812 for FY2020, reduce the transfer authority to 1 billion from 4 and forbid using the authority for the border. It reaches back to the current fiscal year, which I think means that it would force the cancellation of the contracts under the convenience clause.

    HR 2500 in section 2301 which has passed the House forbids using the emergency declaration to fund the wall, limits any domestic use of 2808 to 100 million and changes definitions to forbid any future messing about.

    There have to be some version of HR 2500 and HR 2968 by September 30 or the DoD gets shut down. If that happens because of this, the GOP will get blamed.

    What I don’t know is what is in the deal Pelosi made with Trump. The deal precludes poison pills, but I don’t know if these qualify. If it does require the language to be removed then Pelosi seems to have overreacted.

    One last point, the reason there is no mention of the emergency declaration and 2808 is that Trump has not tried to use it and promised the trial court that if he ever does, then the court will be notified. The case against 2808 is much stronger than the case against 8005.

    1. It is section 8127 not 812.

  14. As noted in my comments earlier in the proceeding,

    1. I think the plaintiffs are likely right on the merits if they can get there, most basically because the administration is attempting to invoke emergency powers for a situation which is not a genuine emergency, thereby exceeding the authority Congress granted.

    2. Advocacy groups would be well advised to look for plaintiffs with clear, unimpeachable standing, based on very traditional standing criteria. Initiating cases that get thrown out on standing grounds could waste a lot of everybody’s time. If cases with clear standing go later, courts will likely wait until decisions on earlier cases get reached, effectively delaying everything and letting the administration proceed in the meanwhile.

    1. On your point 2, the advocacy groups are engaging in a sort of legal DDOS attack. Doing this sort of thing doesn’t require the individual cases to be meritorious, all the cases are doing is providing an opportunity for their judicial “botnet” to launch the attack.

      Given the current national injunction craze, this can be pretty effective, because they only need ONE case to prevail to override all the cases they lose.

      Basically they’re just trying to run out the clock until January 20th, 2021.

  15. Reading the briefs suggested to me the standing issue was much more about whether the prudential standing zone or interest test blocks the plaintiff’s standing because they weren’t within the zone of interests advanced in section 8005. Specifically, the government argued that Dalton directly foreclosed standing in this kind of case.

    Personally, I think the prudential standing stuff is kinda crap but it is precedent.

  16. Hey, liberals, please explain to me why I’m morally obligated to consider this woman’s future child one of my “countrymen?”

    HTML Link

  17. Both the plaintiffs and the professor lack the proper creativity to win their case on the merits. To do so both would have to get Auer, Chevron, and the majority of delegation doctrine precedents overturned.

    If that is not done, ruling against the administration is simply “Trumplaw”, with no actual principles based on canons of construction of constitutional interpretation (originalist or otherwise).

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