Border wall

Federal Court Rules Trump Cannot Use "Emergency" Declaration to Divert Funds to Build his Border Wall

The decision is the first to address the legality of using the emergency declaration for this purpose. Previous wall cases involved Trump's attempts to redirect other funds.

|The Volokh Conspiracy |

Earlier today, federal district judge Judge David Briones issued a decision holding that it is illegal for President Trump to use his declaration of a "national emergency" to divert funds to build his border wall. This is the first judicial ruling directly addressing the issue of whether it is legal to use the emergency declaration for that purpose. Previous wall decisions dealt with the administration's attempts to divert other funds to build the wall, from sources that did not depend on the use of the emergency declaration. Judge Briones' ruling comes in a case filed by El Paso County and the Border Network for Human Rights.

In February, the president issued a declaration announcing that the situation at the border qualifies as a "national emergency." That, in turn, allowed him to make use of a wide range of powers triggered by an emergency declaration. Among them was authority to use 10 U.S.C. Section 2808, which states that, during a "national emergency" that "requires the use of the armed forces," the president can reallocate defense funds to "undertake military construction projects … that are necessary to support such use of the armed forces." The administration contends that Section 2808 gives it the authority to transfer some $3.6 billion in defense funds towards the border wall. The decision also addresses efforts to  rely on 10 USC Section 284, which allows the use of Department of Defense "counternarcotics" funds to provide support for "counterdrug activities" by other agencies.

Judge Briones' ruling concludes that such a diversion is illegal. He reaches that conclusion for two reasons. First, it violates the Consolidated Appropriations Act of 2019, which ended the government shutdown caused by Trump's fight with Congress over border-wall funding:

To resolve this case, the Court turns to one of the three golden rules of statutory
construction "established from time immemorial" that "a more specific statute will be given precedence over a more general one." Nevada v. Dep 't of Energy, 400 F.3d 9, 16 (D.C. Cir. 2005) (quoting 1 Comp. Dec. 126, 127 (1894) and Busic v. United States, 446 U.S. 398, 406(1980)). This rule "appli[es] to appropriations bills." See id. Thus, "[a]n appropriation for a specific purpose is exclusive of other appropriations in general terms which might be applicable in the absence of the specific appropriation." Id…..

[T]he CAA specifically appropriates $1.3 75 billion for border-wall expenditures and requires those expenditures to be made on "construction. . . in the Rio Grande Valley Sector" alone. CAA § § 230, 231. Defendants' funding plan, by contrast, will transfer $6.1 billion of funds appropriated for other more general purposes f military construction, under § 2808, and counterdrug activities, under § 284. Their plan therefore flouts the cardinal principle that a specific statute controls a general one and violates the CAA….

The court also ruled that the funding diversion violates Section 739 of the CAA, which mandates that "None of the funds made available in this or any other appropriations Act may be used to increase. . . funding for a program, project, or activity as proposed in the President's budget request for a fiscal year until such proposed change is subsequently enacted in an appropriation Act, or unless such change is made pursuant to the reprogramming or transfer provisions of this or any other appropriations Act":

§ 739 creates a general rule and an exception. The general rule is that "[n]one of
the funds made available" in an "appropriations Act" (including the CAA) "may be used to increase funding for a program, project, or activity" that was "proposed in the President's budget request for a fiscal year." CAA § 739. The exception is that appropriations may be used to increase such funding if that use is authorized by "the reprogramming or transfer provisions" of an "appropriations Act." § 739 prohibits Defendants' plan to fund the border wall because the plan is barred by that provision's general rule and the plan does not fall within its exception.

Defendants' plan is barred by § 73 9's general rule, because it (1) seeks to use funds "made available in" an "appropriations Act"; (2) "to increase funding for a program, project, or activity"; (3) that was "proposed in the President's budget request for a fiscal year." First, Defendants' plan seeks to use funds "made available in" an "appropriations Act." CAA § 739. It taps appropriated military construction funds under § 2808 and counterdrug support funds under § 284. As the White House has acknowledged, all funds have been "appropriated by Congress….."

Second, Defendants' plan also seeks to use these appropriations to "increase funding for a program, project, or activity." CAA § 739. Construction of a wall along the southern border is a singular "project" under that word's ordinary meaning. See Merriam Webster's Dictionary 932 (11th ed. 2003) (defining "project" as "a specific plan or design") Indeed, the Executive Branch has consistently referred to the wall in this manner….

Defendants' funding plan is not saved by § 739's exception: the funding increases it proposes are not "change[s] . . . made pursuant to the reprogramming or transfer provisions of this or any other appropriations Act." Under federal law, an "appropriations Act" is an Act whose title begins: "An Act making appropriations." 2 U.S.C. § 622(5); 1 U.S.C. § 105. Neither § 2808 nor § 284 begins with this language. § 2808 is a provision of the Military Construction Codification Act, Pub. L. No. 97-124, 96 Stat. 153 (1982), which says nothing about appropriations in its title, nor makes any appropriations in its body. And § 284 is a provision of the National Defense Authorization Act, Pub. L. No. 114-328, 130 Stat. 2000, 2381, 2497 (2016), which by title and substance is not an "appropriations Act." Cf Pub. L. No. 115- 31, 131 Stat. 135, 229 (2017) (separate statute appropriating DOD funds). The Proclamation violates § 739 of the CAA.

I  am not sure what to think about the court's "specific trumps general" argument. It raises some difficult statutory interpretation questions that I will leave to those with greater relevant expertise. But the Section 739 point strikes me as compelling, for exactly the reasons explained by Judge Briones.

Resolving the national emergency question in this way allows the court to avoid virtually all of the big picture issues surrounding the emergency declaration, such as whether the situation at the border qualifies as "national emergency" under the National Emergencies Act of 1976, whether the relevant provision of the National Emergencies Act (if interpreted in the broad way the administration advocates) is unconstitutional, and even whether the text of Section 2808 actually allows the use of funds for border wall construction (in my view, the answer is an emphatic "no"). It also does not consider whether the president has the authority to use eminent domain to seize property for border wall construction not specifically authorized by Congress.

The narrowness of the ruling might prove attractive to appellate judges (including perhaps some Supreme Court justices) who want to find a relatively simple way to dispose of the national emergency issue, without having to set any broad precedent. But the broader questions could, nonetheless,  come back into play when the administration appeals the decision.

The ruling is also notable for the fact that it comes in a case where the plaintiffs have clear "economic" interests at stake. El Paso County controls land near the area where the wall would be built, and its construction is likely to damage its tourist industry and reduce its revenues. In addition, some $20 million of the money diverted would come from a military construction project in the County, in which the local government has an obvious economic interest, as well.

Some previous rulings in border wall cases have been decided on procedural grounds, because the plaintiffs in question lacked sufficient strong interests to qualify for standing. In a recent Ninth Circuit decision holding that Trump lacked authority to divert other military funds for border wall construction, a dissenting judge argued that the plaintiffs were not legally entitled to bring the suit, because their lack of an "economic" interest placed them outside of the "zone of interests" protected by the relevant federal statutes. The Supreme Court eventually stayed the Ninth Circuit decision, possibly based on such procedural concerns.

In the El Paso case, the plaintiffs' economic interests are difficult to deny. It is hard to have a much clearer economic interest than having the government build a wall near your land, using funds that might otherwise benefit you. Thus, it will be difficult for the administration to get this case dismissed on procedural grounds. Courts will likely have to continue to address it on the merits.

Given the virtual inevitability of an appeal, this case is far from over. And there are many other wall-building cases still making their way through the system, whose outcomes remain to be seen.

It is also worth noting that Judge Briones is a Democratic appointee. So far, all of the Democratic-appointed judges who have issued decisions in wall cases have ruled for the plaintiffs, while all but one Republican appointee (Judge Clifton of the Ninth Circuit) have voted against them. It is, possible, therefore, that the wall litigation will continue to split judges largely along partisan lines. On the other hand, all the Republican judges who have voted against the plaintiffs, so far, have done so on procedural grounds. Judge Clifton is the only one who has reached the merits, and he voted for the plaintiffs. At least some other GOP-appointed judges might take similar positions when and if they get the chance to rule on the merits, as well.

Today's ruling is a notable victory for opponents of the wall. But the outcome of both this case and that of the broader legal struggle over the wall remain uncertain. Stay tuned!

UPDATE: The original version of this post overstated the directness of El Paso's economic interests that will be affected by the construction of the border wall. I apologize for the mistake, which has been corrected.

 

NEXT: The legal-historical amnesia of using tax exemptions to punish political beliefs

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. “Construction of a wall along the southern border is a singular “project” under that word’s ordinary meaning. See Merriam Webster’s Dictionary 932 (11th ed. 2003) (defining “project” as “a specific plan or design”)”

    Not really. If this waste of land and money is every fully constructed, it will be as a result of multiple projects, just as the portions that have already been built were built as different projects. Each of those separate projects will have specific plans and designs and will be built under separate contracts (even if by the same company).

    1. If this waste of land and money is every fully constructed,

      As someone whose family was stuck behind a wall for decades, let me assure you: walls work in keeping people from crossing national borders illegally.

      If you oppose the wall, it’s not because it doesn’t work, it’s because you favor illegal migration into the US by the millions.

      1. As someone whose family was stuck behind a wall for decades, let me assure you: walls work in keeping people from crossing national borders illegally.

        No. They don’t. The wall I assume you were referring too actually didn’t work very well in keeping people from crossing legally or illegally.

        If you oppose the wall, it’s not because it doesn’t work, it’s because you favor illegal migration into the US by the millions.

        Walls don’t work. End of story. And if someone doesn’t favor a wall doesn’t mean they support illegal immigration. But what is also true is that nations that suppress immigration die.

        1. regexp…You know, if walls don’t work, then why do rich people put them up around their property? And why do countries all around the world use them? Prisons use them.

          regexp…walls don’t work
          Rest of world…they build walls

          regexp…I think I am going with the rest of the world on this one.

          1. The wall examples you use (prisons, private homes) are not apt comparisons to a border wall. In a prison you are looking to keep people in not keeping people out. With private homes there are no alternative means for getting in if you have a wall. You can get into the United States by airplane and completely avoid the wall. The biggest cause of illegal immigration are visitors overstaying visas. Take the money from the wall and apply it to hiring more investigators and increasing number of ALJ’s so you can process deportations faster you will make a larger dent in illegal immigration numbers.

            1. “With private homes there are no alternative means for getting in if you have a wall.”

              People can climb a border wall but not a wall around a house?

              Why?

              1. You can climb both, but the point with home security, like internet security, is generally to make your home a less appealing target than your neighbor’s. The U.S. will always be more attractive to enter than any other country in our hemisphere, so the relatively minor inconvenience of a wall will not change that calculus.

                Also, the wall around a house deals with a smaller space which affects various aspects including the cost-benefit analysis and the fact that someone climbing the wall around your house has a very high probability of being spotted by someone whereas someone climbing over or tunneling under a border wall will likely choose one of many locations that are highly unlikely to be spotted.

                Will a wall marginally increase the difficulty (i.e., cost) to get into the U.S.? Sure. Are the huge costs (which will include not only the tens of billions to construct it, but also the cost imposed on individuals and communities in taking their land or splitting their communities, environmental impacts, and reputational costs to the U.S. among other costs) of a marginally effective wall worth the minimal deterrent/preventative effect of a wall? No.

                1. Maybe, instead of a border wall, we should just put up signs that say, “Protected by ADT” along the border.

              2. “People can climb a border wall but not a wall around a house?”

                I’m guessing most walls around rich people’s houses are for privacy , not security, purposes. Or they are there simply to mark property boundaries. Which makes them just like the fences ordinary people put up.

                It’s trivially easy for a burglar to climb a wall to get into an estate. It’s harder to climb back out when he’s loaded down with loot. That’s a problem illegal aliens don’t have–they aren’t worried about the return trip.

                1. They do have children however. It’s rather harder to climb a wall with a 30 pound child on you.

              3. “People can climb a border wall but not a wall around a house?”

                Well in the example above, the issue is people flying over the wall in airplanes, and landing on the other side at airports. Most homes don’t have airports within their walls. There usually aren’t airports in the middle of prisons, either. I know this because I saw Con Air.

            2. nymind….I think you forgot to mean one wall type I mentioned: border (And why do countries all around the world use them?)

              Look, I’m good with doing both: hiring more investigators and increasing number of ALJ’s so you can process deportations faster. And doing a wall in addition. And mandating the use of eVerify for every job in the US. 🙂

              You’re 100% correct on your overstay visa point.

              1. You won’t get any argument from me about mandating eVerify. I am just concerned about the budget if you are going to build a wall and hire more investigators/ALJ’s. I am also skeptical because any wall that can keep people out can also keep us in and what that could be mean for civil liberties or citizens.

                1. NY….I am not at all concerned about a wall ‘keeping us in’. We live in a magical place: America. 🙂

        2. In all the decades of their existence, when has the term ‘fiscal responsibility’ ever been a major concern let alone the main concern for libs for all the cockamamie things they do and all of a sudden they expect us to believe its the primary thing they care about now? Yeah I’m disappointed and a bit hurt. Even I don’t think that little of the intelligence of some of the progressive posters here.

        3. A border wall or fence doesn’t have to stop 100% of border crossers to be effective. Israel implemented an effective border fence that has diminished its suicide bomber infiltration to almost zero. Link: http://en.wikipedia.org/wiki/Israeli_West_Bank_barrier#Effectiveness

          It is difficult to smuggle human beings compared to drugs, guns or contraband. They require food, water, air to breathe, have to relieve themselves periodically, can’t be kept in hidden compartments for days on end, weigh 130 lbs or more and take up a lot of space.

          There are many ways in which illegals get taxpayer support. As just one example, every illegal alien’s child is entitled to a public school education (even if the child is also illegal) and the average cost of this education is $11,000 per year (2014 figures). An illegal alien’s child enrolled in first grade will cost the taxpayer $132,000 to graduate from high school. This $132,000 of course becomes unavailable to educate the children of citizens and legal immigrants.

          So a $25 billion wall will pay for itself if it deters just 190,000 illegal aliens of child-bearing age from crossing the border illegally.

          1. Israel: build wall to stop suicide bombers
            USA: builds wall to stop kids going to school.

      2. “If you oppose the wall, it’s not because it doesn’t work, it’s because you favor illegal migration into the US by the millions.”

        No, it’s because it won’t make a big enough difference to be worth the cost. It won’t do anything to stop the majority of illegal immigrants, who enter legally and don’t leave. It won’t do anything to stop the illegal immigrants sneaking through points of entry in the backs of trucks. It won’t do anything to stop the illegal immigrants coming in through the drug-smuggling tunnels. It won’t do anything to stop illegal immigrants coming from Canada. It won’t do anything to stop the illegal immigrants coming in by boat.

        So yes, it might temporarily inconvenience a small fraction of the illegal immigrants who just try to walk across the border all on their own. That doesn’t make it worth the land or cost.

        “As someone whose family was stuck behind a wall for decades, let me assure you: walls work in keeping people from crossing national borders illegally.”

        If you are talking about the Berlin Wall, I’m pretty sure the guards willing to shoot people trying to escape had more to do with it than the wall itself. And no, we aren’t going to start shooting people for illegally entering America.

      3. Alternate world according to progs:
        CNN: This just in, scientific proof Border wall prevents 100% illegal immigration.
        Sarcastro, Kirkland, regexp, Harris, Bernie etc: Is that so? Well that changes everything! Build that wall!…U.S.A U.S.A U.S.A

      4. If you’re talking about the Berlin wall, bear in mind that it was only 87 miles long, hardly enough to cover our southern border, and manned by guards willing to shoot and kill those who tried to get over it.

        I’m sure some of the bigots here have no problem shooting illegal immigrants, but I hope even most Trump supporters consider that unacceptable.

      5. As “someone whose family was stick behind a wall for decades”, that did not teach you it’s petty dictators who build walls to curtail all our freedoms?

        1. Dictators build walls to keep people in, free societies build walls to keep people *out*.

          1. …how many free societies have built walls along an entire border?

  2. Wonder why so many people get mad over a guy who just wants to keep us safe from illegal immigrants.

    1. Wonder why the guy didn’t actually get Congress to approve his plan to keep us safe when he had a majority of both Houses of Congress for two years too.

      Safe or otherwise, the power of the purse (see Art I) is in their hands, not his.

      1. If it isn’t within the powers of the President to keep us safe, just like Obama did with all those unilateral executive actions, then what is the President supposed to be doing?

        1. My copy of the Constitution says he’s supposed to faithfully execute the laws that Congress passes. YMMV, check what yours says, maybe it’s different?

          [ And I was against the “pen and phone call” back then too ]

      2. If the Congress wanted to keep the power of the purse in their hands, they shouldn’t have given the President the power to move funds around based on questionable unreviewable declarations.

        1. Apparently they didn’t, according to this judge.

          1. Oh, the ruling freely admits there are many ways that funds can be transferred around. Just not in this case, for “reasons”.

            Welcome to TrumpLaw ™.

            1. The transfer of funds in this case was unequivocally authorized by military construction appropriations and standing federal law. This garbage ruling will not stand. even in the 9th circuit.

              1. My mistake. Just assumed something silly like this had to come from a court under the umbrella of the 9th circuit. I feel a little better knowing that an appeal will be to the 5th circuit.

        2. I’m filled with admiration at the way he blundered into turning a racist boondoggle into a button connected directly to the pleasure centres of your brains.

      3. Well, because a majority of Congress doesn’t want us kept safe from illegal immigrants.

        Which would be the end of the matter if they could come out and say it, and survive the next election.

        But they can’t, so they have to be tricky about doing their legislative thing so that it isn’t bloody obvious they want the country flooded with illegal immigrants.

        Their being tricky, instead of just passing a law stating that the border with Mexico must remain undefended, opens the door for Trump to be tricky in trying to thwart them.

        And that’s the nature of the fight we’re watching. With random, (No, not random, as Ilya acknowledges. Democratic.) 5th circuit judges fighting along side Congress.

        Ultimately, which side will the Supreme court be on? That’s the question, because the covert nature of the fight leaves them enough wiggle room to rule either way.

        1. Well, because a majority of Congress doesn’t want us kept safe from illegal immigrants.

          I’m not sure if that is true (and I’m definitely not sure it was true during the first two years of the Trump admin), but for now let’s leave the truth of this claim aside and just suppose it was true.

          I don’t think we want a Republic where “Congress is not in favor of this good policy” gives the Executive the right to contravene their express intent. In this case, it was clear during the shutdown that Congress could have but did not allocate money for the border wall.

          Certainly it’s not a thing that Republicans would want a President Warren or Biden to do, any more than Democrats should want Bush or Trump or Cruz to do.

          1. I don’t want that republic, either. But what we’ve got is a republic where Congress gets elected lying about the policy they want, and attempt to covertly prevent the contrary laws they had to pass for political reasons from being enforced.

            That’s a nasty situation for a democracy.

            1. That’s on the voters, it’s not on the government to fix by unconstitutional means.

              1. Ultimately yes. I’m just pointing out that, because Congress had to conceal their opposition to border security, they failed to comprehensively prohibit it in clear terms. Because doing that would be political suicide.

                This left Trump with ways to game the system within the law to accomplish border security.

                1. How in your view did Congress conceal its opposition to border security? And if they did hide it, how did you come to find it out? What non-public records did you review to reach that conclusion?

                  From 2007 to 2013, when Democrats controlled Congress, funding for the Border Patrol went from around $2.1B to $3.5B. This year, the Democratic House approved a $4.6B Border Patrol Budget. In around the same period Customs/ICE’s budgets went from around $12B to $18B. The FY 2019 budget for both those agencies is ~ $22.3B, the highest ever (for both).

                  The argument here is that any amount of funding below some outrageous amount that President Trump demands is amounts to open borders or Democrats “conceal[ing] their opposition to border security”. Which is ludicrous, because it cuts out all middle ground except for a pointless, expensive, mostly symbolic border wall. President Trump might as well champion resolutions affirming Americans hatred for illegal immigrants. But his ineffective approach is totally insincere, whereas everyone else is being disingenuous. Only Republicans’ motives are pure as the driven snow.

                  What’s really happening here is that roughly equivalent numbers of people support/oppose the border wall, the middle of America wants more border security but not the wall, and that’s what we’ve been given. The President went ahead and decided he was going to get his wall one way or the other–because he’s a fucking narcissist who can’t stand losing–and it’s going to weaken support for the wall moving forward. Which is great, because the wall is a stupid idea.

      4. Now that’s just plain nonzenze. Military construction appropriations and federal law clearly and unambiguously authorized the transfer and use of funds. This bull schifff ruling will not stand. It’s a serious legal embarrassment, even in CA.

        1. Just to be clear, did you read the opinion, or at least the parts about whether the appropriations authorized this expenditure?

          My read is “Congress appropriates $1.3B for the border wall only in the Rio Grande Valley” means what it says.

          1. The 2019 CAA does not preclude the use of other appropriated funds for additional construction and Congress has in fact appropriated other monies for military construction (see the Energy and Water, Legislative Branch, and Military Construction and Veterans Affairs Appropriations Act of 2019). Those funds are subject to reprogramming/transfer under the specific terms of that appropriation and have been properly accessed for border construction following the emergency declaration pursuant to 10 U.S.C. § 2808. Sec. 739 is no barrier to the use of those funds. “None of the funds made available in this or any other appropriations Act may be used…unless such change is made pursuant to the reprogramming or transfer provisions of this or any other appropriations Act.” The other appropriations act clearly allows the reprogramming/transfer. The 5th circuit will not let this decision stand. I wonder if the district court itself might reconsider the decision itself.

      5. Claiming Trump “had” Congress is hogwash. Did you forget the 2018 RINO purge already?

    2. “keep us safe from illegal immigrants”

      “Us”? Got a frog in your pocket, kemo sabe? I don’t remember asking anyone to protect me from people I might want to know or do business with, and I sure don’t remember delegating that decision to you, or Trump?

      “Illegal”, as in contraband like illegal drugs, tobacco, alcohol? Illegal like so many other victimless crimes? Again, I didn’t authorize anyone to make such decisions on my behalf, especially not you or Trump or any other politician.

      1. Meanwhile, back in America, the electorate did ask to be protected from illegal aliens flooding our country. And proceeded to elect a man who promised to do that.

        1. Actually, the “electorate” voted for Clinton. Trump represents the “electorate” only when refracted through our antiquated system for selecting the president.

          Call it a legitimate win, if you like. Don’t construe it as a mandate.

          1. That “electorate” included tens of millions of third worlders who are not real Americans

            1. Yeah, but what about Clinton supporters?

              1. Some are, most aren’t.

                1. You missed the joke. Sad, for a troll schtick.

            2. Could you point to any particular element in the Constitution, the Declaration of Independence or the history of our nation that supports this outlandish notion that people that move to America are not Americans?

              1. Being an American is about a culture and sense of shared ethos. It’s not merely about citizenship.

                1. You are rather an outlier in American culture yourself, so careful there.

          2. He won a vast majority of states in our federal union. Now, we could adopt a new system allowing NY and CA to choose all our presidents, if we wanted to adopt a mindbogglingly stupid way to choose presidents.

            1. He won a vast majority of states in our federal union.

              This kind of pedantic equivocation wouldn’t be necessary if you could just admit the truth and get on with it. Why are you so insecure?

              1. So, he lost the electoral college? Interesting point of view. Did I say interesting? I meant insane.

                1. You think the “electorate” means just “the electoral college”? Interesting point of view. Did I say interesting? I meant idiotic.

                  1. You do understand that there is no such thing as a “national” electorate in the context of a presidential election? Maybe you were out combating global warming when they discussed the subject in civics class? Or maybe you’re confused as to which country this is?

                    1. You do understand that there is no such thing as a “national” electorate in the context of a presidential election?

                      First of all, this is false. Second, as I said earlier, emphasizing the peculiar way in which popular support is filtered into the selection of a president, in this country, is not something one would do if they could just confidently admit that Trump lost the popular vote.

                      The only reason you (and others) make this point, so repeatedly, to the point of obfuscating the truth, is that you want to claim to an electoral mandate that Trump never received. The efforts are as disingenuous as they are transparent. And it’s so, so pointless. You and I can both agree that the electoral college vote is what matters. You and I can both agree that Clinton’s GOTV strategy was not sufficient to win where she needed to win. That’s all that matters. Why does it matter so much to you (and to Trump) to say that the popular vote doesn’t matter?

                  2. To be fair, we’ll never know what would have been the outcome if the GOAL was to win the popular vote. Campaign strategy would be different. Maybe some potential Trump voters stayed home in CA and NY that wouldn’t have voted had they thought their votes were important.

                    I’m just saying, you play to win the game according to the rules that exist.

                    I’m not saying I have any clue how likely a Trump victory would have been if the popular vote was the goal – maybe not very – but it’s kind of pointless to point out who “won” according to rules that didn’t apply.

                    1. That “would” have voted, I meant.

                    2. To be fair, we’ll never know what would have been the outcome if the GOAL was to win the popular vote.

                      This is not a relevant counterfactual.

                      The claim being made was: the people voted for Trump’s policies. The truth of the matter is that they did not. Whether or not Trump could have received a true electoral mandate, in some hypothetical scenario, is beside the point.

            2. “He won a vast majority of states in our federal union. ”

              Backwater religious schooling; homeschooling involving substandard parents; and conservative-controlled, nonsense-teaching, fourth-tier (or unranked) schools all have consequences. The thinking reflecting that by comment is among them.

              1. 306 electoral votes sounds like a vast majority to me.

          3. “Actually, the “electorate” voted for Clinton.”

            Well, CA did. CA was her margin of victory in the meaningless popular vote.

            1. And California is majority non-white.

              1. Doing your public service of inserting a non sequitur merely to remind us of your virulent racism? Thanks, I guess.

                1. Maybe if non whites would start acting like Americans

                2. “non sequitur”?

                  Without the right-wing intolerance, how much of the Volokh Conspiracy would there be? Check the comments on substantive legal contributions unrelated to bigotry; then count the comments with respect to the red meat for Republicans.

            2. That’s a little like saying that Texas, Louisiana and Florida voted for Trump. (Those states, collectively, gave him the same number of electoral college votes representing his margin of victory over Clinton.)

              It’s a nonsensical, meaningless statement.

              1. Given that Hillary’s ENTIRE margin was smaller than her margin of victory in CA alone, no, it’s not irrelevant. It’s just CA continuing to make idiotic choices.

                1. And California’s margin of victory doesn’t translate to a margin of victory for Clinton unless you also count all the other millions of votes she received. So you haven’t demonstrated why California’s votes are specifically relevant.

                  Californians are Americans. They count just as much as everyone else.

                  1. To the average Volokh Conspiracy commenter, a person who is educated, reason-based, tolerant, accomplished, and a resident of a modern, successful community is not a “real American.”

                    Some people respect solely the votes of half-educated, intolerant, superstitious, disaffected Americans from our shambling southern and rural backwaters.

                    Those people are entitled to their opinions and have rights, too. May the better ideas (continue to) win.

        2. Elected a Congress that lied about meaning to do it, too.

        3. They also elected a coordinate and co-equal branch of government in Congress, which refused this particular method after explicit deliberation (during the shutdown). Congress didn’t even pass a border wall funding bill between ’16 and ’18 when the GOP had a majority in both houses!

          [ And, in the case of appropriations, this would be a power that the Constitution expressly confers on the legislative and not executive branch. ]

          At some level, this is on us — if we were at all serious we’d send a clear mandate rather than this muddle.

          1. nonzenze (chuckling at name)….We agree = At some level, this is on us — if we were at all serious we’d send a clear mandate rather than this muddle.

        4. So Americans didn’t vote for all those Democrats in the House?

    3. Undocumented immigrants have a lower crime rate than your average American. Why? Because getting noticed means being forced to return to the country you were fleeing. And all they want is a better life for themselves and their families.

      Unlike you.

      1. No, they don’t. They are way overrepresented in federal and state prisons relative to their population. Legal immigrants commit less crime, because they have been vetted. The only study that concluded illegal immigrants commit less crime was a Cato one. Cato is form open borders because they want cheap labor and don’t care if it turns the country into a 3rd-world shithole because they think they’ll be the 1% with a bunch of cheap servants.

        1. Rye Rye,

          There are multiple studies which support the common sense notion that illegal immigrants commit fewer crimes than the general population.

          https://www.nytimes.com/2019/05/13/upshot/illegal-immigration-crime-rates-research.html

          I say common sense because:

          a. Illegal/undocumented immigrants are people like other people.
          b. The costs to an illegal/undocumented immigrant in getting caught committing a crime are much, much higher than the costs for the rest of the U.S. population (less sympathy at sentencing, and the near certainty of deportation after prison).
          c. Ergo, because the motivations to commit crime are largely the same (though some greater economic incentive), the huge disparity in costs would lead a rational person to conclude that illegal/undocumented immigrants would likely commit crimes at a lower rate than the general population.

          This analysis only really changes if you dispute (a). I have known many, many immigrants, documented and not. In my anecdotal experience, they tend to be at least as moral and virtuous as native born Americans.

          1. That was an interesting article to me, mostly because of how hard it demonstrated the “How to Lie with Statistics” principle.

            For example, it mixes quotes about the reports about legal immigrants with those about illegals, and cites think tanks that make unusual assumptions about population size, that apply odd filters to categories of crimes, that fail to apply consistent standards for identifying illegals, or make unjustified adjustments to data. That last point it important: “After controlling for multiple socioeconomic factors”, without listing those factors and justifying their usage, is evidence of… questionable analysis.

            Of course, there’s contradictory evidence, too. Here, try this article for an interesting discussion on how two people can analyze the exact same data and come up with different answers.

            1. Yes, it is an interesting discussion. It’s pretty damning against FAIR’s conclusions, don’t you think? It’s strange that you think it’s more accurate to base conclusions on federal government reimbursements rather than on incarcerations or arrests, especially since SCAAP data does not compare with other incarceration counts.

          2. Crime:

            The studies proving that “immigrants are law abiding” willfully conflate legal immigrants with illegal immigrants.

            Legal immigrants have been fingerprinted and have been through criminal background checks many times before becoming permanent residents, so it is not surprising that they are more law abiding than average. Something as small as shoplifting is enough to reject an application.

            Illegal aliens have not been vetted by anyone, and in many cases don’t even possess traceable documents issued by their own home country. Sure, there are many farm worker illegal aliens who are not criminals, but there are large numbers of illegals who are criminals, usually preying upon their own ethnicities. In Texas alone, in a four year period, 39% of murders were committed by illegal aliens.

      2. regexp…I do not question their motivation. Truly, I don’t. We live in a magical place, America. We have built an amazing country. Who would not want to come here?

        That said, we have a legal process to come here. It is not unreasonable to ask that foreigners follow it, and obey the law.

      3. This is a lie

    4. “Wonder why so many people get mad over a guy who just wants to keep us safe from illegal immigrants.”

      Most Americans wonder why our vestigal bigots do not recognize their stale, ugly views are incongruent with modern American and a fading stain on America’s future.

      America — land of wonder.

  3. The fact that you left out the fact that the judge is a Hispanic Clinton appointee is a material omission

    1. Ilya did put in that he was a Democratic nominee. He was born in El Paso, Texas and served in the United States Army. I am trying to find out whether he is Hispanic since first Google search didn’t mention any names of family members.

    2. It’s about as significant a material omission as you leaving off the final period at the end of your sentence.

      1. Maybe. I took to heart Justice Robert’s admonition that we have federal judges, not Bush judges or Obama judges or Trump judges.

        But I’d want to look at any social media postings, political donations, associations belonged to, public speeches made – and get a complete picture of Judge Briones before I make a statement that he is politically biased. Maybe he is, maybe not.

        If there is bias – that IS material.

        1. No, you’re just engaged in ad hominem-ism.

          The only material “bias” worthy of note would be evident in the opinion itself. If you can’t point to the effect of any “bias” there, then it serves no purpose to dig into the personal “social media postings” or whatever else about the judge you might happen to assert is actually relevant. A judge can be extremely political in their personal time but still issue an opinion that fully comports with the law.

        2. Being of Hispanic descent IS bias itself

  4. This is just sad. Military construction appropriations acts always specifically provide/allow for the transfer of appropriated funds for defense wide military construction projects. I believe the most recent passed late 2018. In other words, the transferred funds at issue in the case were made pursuant to the reprogramming or transfer provisions of an appropriations act.

  5. Apparently, the invasion of the US by a million illegals per year, without any vetting, among them people from hostile communist countries and known hotbeds of anti-American terrorism, doesn’t count as an “emergency” to progressives. And Somin seems positively happy about it. Disgusting. I hope people will take notice and remember this come the next election. Obviously, the judiciary is out of control.

    1. I live on within miles of US/Mexico border and if what we are experiencing is an “invasion” and an “emergency” then we can count ourselves lucky. People who come here only to find a better life for themselves and their family are a net benefit for our country. I would hire one of those so called “invaders” over your sorry ass any day of the week. At least I would know I would get an honest days work by someone who wants to be here. Unlike you.

      1. You could also pay them illegally low wages with no required benefits because, hey, they cannot really COMPLAIN can they?

        The Left: Still not really opposed to slavery.

        1. Straw man much?

          1. Open borders advocates dislike reality immensely.

        2. The Left: Still not really opposed to slavery.

          The irony of this comment being, of course, that Trump’s various efforts to constrain legal immigration will just push more immigrants into “illegal” status, adding more bodies to the shadow labor force that employers (red state and blue state) rely on.

          That’s what’s really going on here. Trump isn’t doing a thing to “protect” us from immigrants. He’s just ensuring more of them will be “illegal,” exploitable, and subject to deportation at a moment’s notice.

        3. damikesc is supportive of centrally planned minimum wages, state-directed benefits packages (for private employers), etc. Are you part of “The Left”?

    2. Of all the arguments against it, this is the only one that seems reasonable. “Emergency” powers are to give the president leeway to act quickly when waiting for Congress to allocate money might take too long.

      Yet Congress had time to consider and reject funding. Therefore the emergency is no longer such a thing.

      1. Indeed there was (hopefully still is) a bipartisan push to amend the statute to clarify that emergencies cannot arise out of any matter on which Congress has duly deliberated.

        Perhaps instead of arguing about this particular action, a reasonable way forwards might be just to fix the law for the future.

    3. NOYB2….Not to worry, as I write, the Judiciary is being changed.

      There are ~860 Article III positions, exclusive of SCOTUS. POTUS Trump currently stands at 150 confirmed. There are 16 awaiting final votes, 21 passed out of committee, and at least another 50 nominees waiting in the wings. The judiciary will have been changed permanently by November, and there is no going back.

      Of the ~180 Appelate positions, POTUS Trump will have filled 50 of them. He has gotten 43 on the court, and 7 await hearings/votes. We have not had a POTUS impact the circuit court that broadly since FDR.

      My point to you: The judiciary is slowly being brought under control by constitutional means, by nominating judges who will circumscribe federal power. If POTUS does nothing else other than reduce the federal bureaucracy, and restore the judiciary, his will have been a very consequential presidency.

      1. I will enjoy your bitter wailing when America’s betters enlarge the Supreme Court. After observing the benefits of that development, perhaps America’s betters will enlarge the circuit and district benches.

        After that, right-wingers can try to reverse the tides of American progress and the culture war.

        1. If you try that, I will eagerly cheer on a 2nd Amendment remedy. Just remember, conservatives have more bullets than you perverts have ballots.

          1. If there’s anything the Volokh Conspiracy is good for, it’s the exposure of conservative thinking — a blend of gun nuttery and long-simmering right-wing outrage about the culture war — to a broader audience.

            1. Kirkland…This is not about SCOTUS. It never was. This is all about what SCOTUS sees = 50+ Appellate judges on circuit courts by November 2020 out of 180 total; 43 have been confirmed, 8 more will be by Hannukah. Next year, with a couple of Appellate vacancies, they will probably be filled as well. By itself, this will have an impact for a generation, likely more.

              You can denigrate people all you want. This objective reality remains, regardless of your words.

      2. “…by nominating judges who will circumscribe federal power.”

        You mean like… Presidential power?

    4. For me, the true “emergency” is the increasing stridency of the white nationalist populists and their successes in corrupting our political culture to such an extent that significant numbers of people no longer care much for freedom, elections or the rule of law – as long as someone else’s ox is getting gored.

      1. No, it’s more that you’re seeing that white men have a point beyond which they won’t allow themselves to be pushed.

      2. Name these white nationalists. CNN had Richard Spencer on and he was hardly supporting Trump. David Duke tends to support Ilhan Omar. Who are these people you fear so?

        1. The people I “fear” are people like the commenters here, who will tolerate and even celebrate rampant lawlessness from the Trump administration, just because they think he’s “protecting” the country from illegal immigration.

          See also: Trump, his family, his VP, and most of his cabinet.

          I don’t have any issue with people, and politicians, thinking (wrongly) that a border wall is the way to deal with illegal immigration. I don’t have any issue with their trying to push through legislation authorizing the construction of such a wall.

          What I do have a problem with is deciding that, despite Congress declining to fund the wall, despite immigration’s not being a true “national emergency,” we have a president who will shuffle appropriated funds around at will in order to deliver on a campaign promise, in mere service of his own election prospects. This man did not have the will, savvy, or influence to negotiate border wall money when he had a compliant Congress. But now that his attention has turned to his re-election – that is to say, trying to avoid all of his corruption from being revealed once he is out of office – there is this “emergency” that requires him to subvert the will of Congress and to de-fund countless projects. All for a campaign prop.

          And there are people here cheering him on. That’s what frightens me. These people will cheer anything this man does, no matter how lawless or autocratic it turns out to be. They’ll cheer the destruction of the republic.

          1. “The people I “fear” are people like the commenters here, who will tolerate and even celebrate rampant lawlessness from the Trump administration, just because they think he’s “protecting” the country from illegal immigration.”

            So, THIS makes them “White Nationalists”?

            So, again, “white nationalist” means “someboidy I don’t agree with”.

            1. No, what makes them “white nationalists” is the belief that many of them share, which is that (white) America needs to be protected from the “invasion” of various non-white immigrant groups.

              1. And the worst white nationalists of all are the Hispanics:

                Most Hispanics back deportation, want immigration cap cut in half

                Quotes:
                An election eve poll finds sweeping support for immigration enforcement even among most Hispanics in the United States, potentially bolstering Donald Trump’s presidential bid.

                The Pulse Opinion Research survey found that 51 percent of Hispanics believe that there has been “too little” done to enforce immigration laws. What’s more, by a margin of 49 percent to 36 percent, Hispanics “support a policy causing illegal immigrants to return home by enforcing the law.”

                Another key finding: Most Americans want a cap of 500,000 immigrants a year, about half the current level.

          2. Really?

            Obama was regularly slapped down by the courts for his executive overreach. His administration expanded executive power all the way into killing American citizens without trial!

            In contrast, Trump has been winning most of his court cases. The times he loses tend to be on procedural grounds – Not a long enough comment period, or some other APA ‘violation’. His practice of declaring a “national emergency” about immigration is weak, but it is STILL better than declaring a “national emergency” about Ukrainian bank transfers – and most importantly, it’s still squarely within the powers that Congress gave him.

            The biggest thing Trump has done is that he has revealed how much Congress has abrogated responsibility to the Executive… and if Congress can work up the spine to fix that, it’ll make Trump Presidency one of the best in the past century and a half.

            1. Obama…

              I’m not talking about Obama. I’d be happy to concede certain points about his “executive overreach,” but it’s not relevant to Trump’s lawlessness.

              In contrast, Trump has been winning most of his court cases.

              First of all, this is simply false. Second, it’s important to understand that many of the court challenges of his policies are still in very early stages, or may yet to be even brought. Third, the judicial record, such as it is, is not as indicative as you seem to think that it is.

              In many cases, Trump’s actions have been clearly lawless, but few people see profit in challenging them in court, or they lack standing to sue. His unilateral abuse of tariff authority (with accompanying “exemptions” handed out on a case-by-case basis) is a good example.

              The times he loses tend to be on procedural grounds – Not a long enough comment period, or some other APA ‘violation’.

              Also not an accurate characterization. In any event, APA “violations” are legal violations, violations of duly enacted law. The APA exists precisely to constrain the actions of the executive/administrative state. How can you just wave off failures to abide by the rules for making rules?

              The biggest thing Trump has done is that he has revealed how much Congress has abrogated responsibility to the Executive… and if Congress can work up the spine to fix that, it’ll make Trump Presidency one of the best in the past century and a half.

              This is like saying that the Nixon presidency was a “success” because it invited reforms to constrain presidential action (which Trump is doing his best to circumvent or undermine).

              1. When talking about Presidential behavior, or norms, or “lawlessness”, then comparisons to other Presidents is directly relevant. Trying to pretend that this that behavior was considered acceptable then is now problematic does more to damage the credibility of those that make the argument than it does to condemn Trump.

                As for Trump winning, he has been. His immigration restrictions won, despite a long series of biased judges who were wrong about it. His tariffs were upheld, his appointments have been upheld, the firings were upheld. The wall funding has mixed results so far, as with the ’emoluments’ cases. I’m not sure what cases you think Trump has been losing on grounds other than the APA – can you list them for me?

                As for the APA, losing on procedural grounds is silly. While it is losing, it’s admitting that the law or regulation Trump wanted was perfectly legal, he just needed to wait longer before publishing it. That’s not a threat to law and order, or death to our democracy.

                You post is centered around a complaint about Trump’s “National Emergency” declaration… which is completely legal. Congress decided to give the President extremely broad powers to declare emergencies and to accomplish certain tasks by doing so. You may think this is foolish (I certainly do) but Trump’s usage has been BETTER than past usages. Again, you might not like to look back at Obama and Bush and Clinton, but those are the comparative usages that exist… and they are even less justified than what Trump has done.
                I would like to hear your criticism about the “National Emergency” in terms of how it is illegal or unlawful. You’ve made that declaration, and then expressed a strong opinion about other posters because of it… but you’ve done nothing to justify your accusations. Please, do share with the rest of us.

          3. “What I do have a problem with is deciding that, despite Congress declining to fund the wall, despite immigration’s not being a true “national emergency,” we have a president who will shuffle appropriated funds around at will in order to deliver on a campaign promise, in mere service of his own election prospects. This man did not have the will, savvy, or influence to negotiate border wall money when he had a compliant Congress.”

            Curious to get your evaluation of DACA.

            1. DACA was intended to be a temporary exercise of prosecutorial discretion to create political time and space for more comprehensive immigration reform. It was never intended to be, and was not, a permanent program granting Dreamers rights explicitly precluded by duly-enacted law, and as far as I am aware, Obama never re-allocated appropriated money in order to implement it.

              It was not a political stunt pursued in desperation to have something to show his base. It was a genuine attempt at a solution.

              As I understand it, the legal infirmity of DACA stems not from the idea that Obama’s ICE could pick and choose whom to deport, but specifically from the fact that DACA provided this whole process and quasi-official “blessing” not to be deported. It created a kind of rule-like structure that was – it is said – beyond presidential authority to create. So what’s bizarre to me, about holding up DACA as an example of Obama’s lawlessness, is that it was actually very law-like in effect, promoting core rule of law values for a population whose deportation really served no one’s interests.

              1. DACA, like DAPA, created a registration and work authorization and tracking program. These programs employed people, used equipment, and occupied buildings – all of which was never authorized by Congress. I don’t know where that Administration reallocated the funding from in order to pay for those people, buy that equipment, or rent those spaces. But it did so, or it violated the law by NOT paying for those things.

              2. “It was not a political stunt pursued in desperation to have something to show his base. It was a genuine attempt at a solution.”

                As with the Trump and the wall, Obama did not have the will or savy to get anything done about immigration reform when he had a compliant congress. DACA, like the expanded wall funding, had been considered and rejected by Congress. DACA, like the expanded wall funding, was all about showing his base he could do something.

  6. Irrespective of “. . whether the president has the authority to use eminent domain to seize property for border wall construction not specifically authorized by Congress.” The issue of import is that the United States has the authority to delineate and control its borders. The fact that an individual may have adjoining property on the other side of the international border is immaterial. Federal law is controlling.

    Otherwise, an individual who owned such a tract of land could operate an illegal border crossing without the oversight of the Border Patrol. (What a great way to facilitate drug shipments. Charge traffickers to cross the border under the guise of “Private property.” )

    The Supreme court need to jump in promptly and shut down Federal District court judges issuing federal injunctions. Are we going to allow the issue to be litigated in EVERY democratic district court with another plaintiff? The ultimate results will be the ultimate stalemate. No party will ever again be able to get anything done as the other party could fight it in every opposing district court with injunctions until the end of time.

    1. The eminent domain thing isn’t about individuals with adjoining property on the other side of the international border, this is about folks whose properties are divided by the border wall.

      If it were the former, I would agree with you whole-heartedly that there is virtually no issue with seizing (and paying fair market value for) a parcel of land directly abutting the border for the purpose of a barrier.

  7. Trump does not care about ending illegal immigration. If he did, he would have listened to all those experts he fired on the right way to do it.

    If you want to end or curtail illegal immigration into this country, particularly when it comes to the Central Americans who have been coming lately, what you’d need to do is require all employers to use E-Verify and reduce the crime and corruption that is driving people to come here in the first place. Trump has steadfastly refused to do the first and has only undermined efforts to do the second.

    The wall is just a political stunt. It’s a cartoonish hack at the problem, and the only reason that Trump is breaking several laws and risking a constitutional crisis over it is because his only strategy for winning in 2020 is invigorating a base that understands the issue only in simplistic terms.

    So, if you’re here telling the rest of us that you care about “national borders” and preventing an “illegal invasion” of our country, and you honestly believe that Trump’s preposterous wall will do anything about that, then congratulations – you’re exactly the kind of chump Trump thinks you are.

    1. “If you want to end or curtail illegal immigration into this country, particularly when it comes to the Central Americans who have been coming lately, what you’d need to do is require all employers to use E-Verify and reduce the crime and corruption that is driving people to come here in the first place. Trump has steadfastly refused to do the first and has only undermined efforts to do the second.”

      1) Dems oppose E-Verify and have for years.

      2) Why is it America’s job to fix up other countries?

      1. 1) Your blanket statement is untrue. Some Democrats and some Republicans have opposed it. Most Democrats want changes and/or to have it as part of a multi-pronged immigration deal. This is not the same thing as “oppose.” Moreover, the post is about Trump and Republicans and they controlled everything for two years and didn’t pass and implement legislation mandating e-verify or, for what that is worth, the border wall. In other words, the SimonP’s point is exactly right: “The wall is just a political stunt.” If Republicans had really wanted it, just as if they really wanted to repeal and replace the ACA, they would have done it. Instead, they just like getting their constituents all excited over these issues, but have no interest in actually finding and implementing a solution.

        2). America often has an interest in helping “fix up” other countries. If too many immigrants is a problem, the cost-benefit analysis may well favor helping the origin countries rather than trying to make America impenetrable. This is very likely the case given that improving the home countries has snowballing positive effects that help many things other than just reducing undocumented immigration (national security, additional allies on important geopolitical issues, etc.) and is a long-term solution whereas building a fortress is cost-prohibitive and carries with it lots of unrelated negative aspects. In other words, considering only what’s good for America and placing no weight on any moral responsibility an extremely wealthy nation may have, there are good reasons for foreign aid.

        1. NOVA….Is there a reason not to do this piecemeal? Meaning, why do we need a grand bargain?

          My thought is that incrementalism works, and in fact, is probably what the Founders had in mind. Why not just consider eVerify, then move on to each element? Takes longer, but then we would have more of a consensus, I think, and a more extensive discussion.

          1. Exactly. If someone wants to hold something hostage in exchange for other concessions it means they don’t want it.

      2. Dems oppose E-Verify and have for years.

        So, apparently, do Republicans.

        Why is it America’s job to fix up other countries?

        It’s not, until those other countries’ problems become our own and we want to do something about it. Which is what Trump says he wants to do.

        This isn’t that difficult to understand, once you take the ideological blinders off. A wall at the southern border is not going to meaningfully reduce rates of migration into the United States, as long as countries in Central America are dealing with corruption, out of control criminality, and poor economic prospects – particularly once the “Stay in Mexico” band-aid proves to be the total sham it was always intended to be. So you can either seek ways to accommodate and mitigate that migration, or stop it at its source.

        1. So, just conquer Central America? Got it. I’ll pass on that offer.

          1. So, just create a straw man to burn and walk away proudly? Lame, damikesc.

            1. The argument was before we can secure our borders, we need to fix the reasons why they want to come here/

              That’d only require conquering their country.

              Perhaps treat brown-skinned folks as if they were REALLY adults and able to do shit for themselves?

        2. We can’t even fix the dysfunction and the corruption in our own Puerto Rico; how could we fix it in Mexico and Central America?

          A patrolled barrier won’t stop all the illegal immigrants because the pressure to come here is so great and risk/reward is skewed heavily on the side of reward. It will, however, stop a lot of it, maybe even most of it.

  8. What a waste of words, Let me simplify. Orange Man Bad
    Find Obama judge to stop whatever Orange Man wants to do

    1. Also simple: Conservative thinking is roadkill along the path to American progress. The occasional pause to avoid the casualties doesn’t change the journey much.

      Accept your defeat with dignity. Try to get better. Or continue along the current course. Doesn’t matter much, in the end.

  9. Really with nutjob Ds running for president you’ll get these “judgements “ nonstop
    Oh wait we already do. Well at least we have SCOTUS
    Barely
    Notice how lockstep the 4 lib SCOTUS justices are.

    1. What’s your plan for avoiding enlargement of the Supreme Court by your betters in a couple of years?

      A machine that mass-produces cranky, old, bigoted, selfish, religious, economically inadequate, uneducated, rural southern males?

      A miracle?

      1. 5.56 rounds?

        1. The intellectual and moral ancestors of today’s conservatives tried that in the mid-1800s. Movement conservatives will learn — the hard way, in many cases — that the bigoted and backward do not win in America, at least not over time.

          So carry on, clingers . . . precisely so far and so long as your betters permit. (Your best chance to hang on a bit longer is to be found in our desolate southern and rural stretches, which makes the Conspirators’ selections for residence — Los Angeles, D.C., New York, Chicago — curious and perhaps telling.)

          1. Kirkland….To expand SCOTUS, Congress has to a) repeal a law, and b) pass a new law, and c) make sure it won’t get a veto’ed by a POTUS, and d) have the 2/3rds of members ready to override.

            It is a seriously heavy lift. I don’t see the consensus for that.

      2. Really dude just fuck off

  10. If there is one thing most Conspiracy fans (and Conspirators) can’t abide, it is a libertarian expressing a libertarian position.

    My condolences, Prof. Somin. You really need (and deserve) to find a better set of playmates.

  11. It’s time for the Supreme Court to declare that all motions for injunctions regarding Trump’s executive actions must be heard by them directly. It’s outrageous that Obongo and Klinton judges can hold up Trump’s presidency because “Orange Man Bad.” And hopefully, RBG kicks the bucket soon.

    1. This is the kind of cogent legal analysis I expect from Bernard11. Not nearly enough talk about anal sex to be a real RestoreWesternHegemony post. A RestoreWesternHegemony post without anal sex is like a Rev. Arthur L. Kirkland post without clingers. Still not satisfying, but there’s just a little something missing.

      1. I do agree that SCOTUS desperately needs to scuttle national injunctions from district judges as they seem to trample the entire concept of districts in the first place.

        The rest of his post was useless.

  12. “Construction of a wall along the southern border is a singular “project” under that word’s ordinary meaning. See Merriam Webster’s Dictionary 932 (11th ed. 2003) (defining “project” as “a specific plan or design”)”

    I disagree with Ilya Somin’s analysis of the merits of this argument. If the wall is ever fully constructed, it will be as a result of multiple projects, just as the portions that have already been built were built as different projects. Each of those separate projects will have specific plans and designs and will be built under separate contracts (even if by the same company), which seems much more in keeping with the usage in the statute than treating “project” as the overarching goal.

  13. I wish Robert Heinlein was still around typing in his corporeal form.

  14. I’m a goddamn borders abolitionist. And even I think building a border wall is a constitutional use of executive authority. What exactly do you imagine the rest of America thinks it???

    1. That Congress should fund a wall if a wall is to be built?

  15. “clearer economic interest than having the government build a wall near your land”

    One has an “economic interest” based on something that happens to other people on land you don’t own because it is merely nearby?

    Interesting.

    1. As I remember it, there have been a bunch of lawsuits over the development of wind farms from nearby land owners, based on the idea that the turbines ‘ruin the view’ or such.
      I bet normal development (housing, roads, etc) has been challenged for the same reason.

      I can’t find any references to how successful such claims are, but it certainly doesn’t seem to be a new thing.

Please to post comments

Comments are closed.