Border wall

Ninth Circuit Rules Against Trump's Diversion of Military Construction Funds to Build his Border Wall

The divided 2-1 decision is the first court of appeals ruling to rule on the legality of a key part of the funding diversion effort.


Yesterday, in Sierra Club v. Trump, the US Court of Appeals for the Ninth Circuit ruled that President Trump's effort to divert military construction funds is illegal. This is the first appellate decision addressing the issue of whether Trump could use a national emergency declaration to divert funds to the border wall by using 10 USC Section 2808, which, says that "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…  that requires use of the armed forces," the Department of Defense will have the power  to divert military construction funds "undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces." A previous Ninth Circuit decision ruled it is illegal for Trump to divert funds by using Section 8005 of the the 2019 Department of Defense Appropriations Act.

The majority opinion, written by Chief Judge Sidney Thomas, relies on several obvious shortcomings in the administration's position:

Section 2808 allows the Secretary of Defense to undertake military construction projects in the event of a national emergency requiring the use of the armed forces, but the statute specifies that such projects must be "necessary to support such use of the armed forces." The district court's analysis is persuasive on this issue, and we hold that border wall construction is not necessary to support the use of the armed forces with respect to the national emergency on the southern border. The Federal Defendants have not established that the projects are necessary to support the use of the armed forces because: (1) the administrative record shows that the border wall projects are intended to support and benefit DHS—a civilian agency—rather than the armed forces, and (2) the Federal Defendants have not established, or even alleged, that the projects are, in fact,necessary to support the use of the armed forces.

First, the record illustrates that the border wall projects are intended to benefit [the Department of Homeland Security] and its subagencies, CBP and U.S. Border Patrol ("USBP"), not the armed forces. The record demonstrates that DoD primarily considered the many benefits to these civilian agencies in determining that physical barriers are necessary….

To the extent DoD decision-makers believed that construction would benefit DoD at all, the record demonstrates that the construction is merely expected to help DoD help DHS. DoD determined that the barriers would serve as force multipliers," by allowing military personnel to cover other high-traffic border areas without existing barriers, a benefit plainly intended to assist DHS, which, by statute, is tasked with "[s]ecuring the borders, territorial waters, ports, terminals, waterways, and air, land, and sea transportation systems of the United States…."

Second, the Federal Defendants have not even alleged, let alone established as a matter of fact, that the border wall construction projects are "necessary" under any ordinary understanding of the word. See MERRIAM-WEBSTER ONLINE DICTIONARY (defining "necessary" as "absolutely needed: required"); OXFORD ENGLISH DICTIONARY ONLINE (defining "necessary" as "[i]ndispensable, vital, essential"). In assessing the necessity of the border wall construction projects, the Federal Defendants concluded: "In short, these barriers will allow DoD to provide support to DHS more efficiently and effectively. In this respect the contemplated construction projects are force multipliers." Efficiency and efficacy are not synonymous with necessity…..

"Necessary" as it appears in Section 2808 is best understood as retaining its plain meaning, which means, at the very least, "required," or "needed." The fact that border wall construction might make DoD's support more efficient and effective does not rise to the level of "required" or "needed"—and the Federal Defendants have failed to show that it does. That Congress declined to provide more substantial funding for border wall construction and voted twice to terminate the President's declaration of a national emergency underscores that the border wall is not, in fact, required or needed.

The key point here is that, far from being a "military installation" or even one "necessary" to support the use of the armed forces, the purpose of the border wall is in fact to aid in civilian law enforcement (in this case with respect to drug and immigration laws).

In his dissenting opinion, Judge Daniel Collins argues that Section 2808 authorizes diversion of funds for pretty much any activity done within an area placed under military jurisdiction. He emphasizes that "military construction" under Section 2808 is understood to mean construction "with respect to a military installation," under 10 USC Section 2801(a). "Military installation," in turn, is defined as "a base, camp, post, station, yard,center, or other activity under the jurisdiction of the Secretary of a military department" (emphasis added by Collins). The Trump administration and Collins argue that "other activity" means any activity the Department of Defense might want to engage in that could, in its view, help address the "national emergency" declared by the President.

As Judge Thomas points out, this theory has the absurd consequence that it "would grant [the Department of Defense] essentially boundless authority to reallocate military construction funds to build anything they want, anywhere they want, provided they first obtain jurisdiction over the land where the construction will occur." This approach becomes even more problematic in combination with the government's position (not contested in this case) that the National Emergencies Act gives the president the power to declare any emergency at any time for virtually any reason he wants. Thus, he could use emergency declarations to transform military construction funds into a slush fund to build almost anything for any purpose whatsoever. Conservatives who might support the use of such power to build a border wall aren't likely to be happy if Joe Biden (or some other Democratic president) uses the same reasoning to declare a national emergency over climate change or gun violence, and then use it to divert funds to build facilities for the Green New Deal, or to promote restrictions on gun rights.

Such boundless authority would raise obvious separation of powers problems, and it makes a hash of the overall structure of Section 2808, which is supposed to limit the relevant authority to divert funds to projects necessary to support military operations, not the use of the military for civilian law enforcement. In context, "other activities" should be understood to mean other military construction similar to those already enumerated (such as bases, camps, and so on).

I think the majority is also right in its approach to the definition of "necessary." This issue is a closer call than the definition of "other activities." As Judge Collins notes—there is a history of courts sometimes defining "necessary" to mean anything that is merely "useful" or "convenient," as in McCulloch v. Maryland's famously expansive definition of "necessary" in the "Necessary and Proper Clause of the Constitution. But Chief Judge Thomas effectively argues that these broad definitions of "necessary" are all taken from unusual contexts where "necessary" is modified by some other term implying a broad construction (e.g.—"reasonably necessary"), or that the the word is supposed to be broad because of the special nature of Article I of the Constitution (in the case of the Necessary and Proper Clause).

My own (admittedly unpopular) view is that Chief Justice John Marshall simply got the meaning of "necessary" wrong in McCulloch, and that James Madison and Thomas Jefferson, among others, were right to argue that it should have been read to mean something like "essential," rather than merely convenient. Regardless, Marshall was careful to emphasize that his broad construction was justified only because of the constitutional context, where broad construction of powers is supposedly needed because "we must never forget that it is a Constitution we are expounding." The same isn't true in the context of a federal statute, where an ultrabroad construction like the one advocate by Collins and the Trump administration would actually have the effect of undermining Congress' constitutional control over federal spending by giving the president virtually boundless discretion to reallocate construction funds however he wants.

The majority and dissenting opinions in this case address a great many other issues, as well, and collectively run to over 120 pages. Among other things, it is notable that both Thomas and Collins conclude that many of the plaintiffs (who include both private organizations and state governments) have standing to sue, and also have legitimate causes of action. Previous rulings against the administration in various border wall cases have been set aside by the the Supreme Court and the Fifth Circuit. This one might not suffer the same fate.

The Trump Administration can take some comfort from the fact that the judges in this case split along ideological lines, with two liberal Democratic appointees in the majority, and a conservative Republican Trump appointee dissenting. If the  case reaches the Supreme Court and the same sort of split happens, the administration will prevail.

However, as a recent DC Circuit decision authored by prominent conservative Judge David Sentelle shows, not all the rulings on these issues necessarily split judges along ideological lines. While Judge Sentelle's decision merely holds that the House of Representatives has standing to challenge the border wall funding diversion, his reasoning also highlights the important separation of powers reasons why the president should not be allowed to claim such broad power to divert federal funds to whatever ends he wishes.

Yesterday's decision is just the latest phase in a prolonged legal battle over the border wall diversion. Unless Joe Biden wins the presidential election and terminates the border wall project (as he has promised to do), the issue could well end up in the Supreme Court.

Still, the combination of this ruling and the recent DC Circuit decision on congressional standing are important victories for opponents of the wall. In combination, they make a strong case against the administration's position on both procedural questions and many of substantive issues at stake in the border wall cases.

The issues addressed in yesterday's ruling are far from the only ones raised by the border wall diversion. Others include  whether the situation at the border qualifies as "national emergency" under the National Emergencies Act of 1976  at all, and whether the president has the authority to use eminent domain to seize property for border wall construction not specifically authorized by Congress. There is also the issue of whether the kind of virtually unconstrained authority  to divert federal funds claimed by the administration violates the nondelegation doctrine—a problem that is a common thread in many of Trump's immigration and trade policies.

History shows that power accumulated by one president tend to be used by his successors, as well—even by those with very different political agendas. Whether or not he ultimately succeeds in building the border wall, Trump's attempted power grab here could set a dangerous precedent—if the courts allow him to do so.

NEXT: The Fourth Rule of Court Packing Is Accuse Republicans of Court Packing

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  1. How many words does it take to say “Orange Man Bad”? At least 2,000.

    1. Wait a second, you still support Trump diverting funds to his asinine fence even after Al Qaida slaughtered 3 Americans at an American outpost in Kenya because Trump went with no physical barrier and cheaper Kenyan security guards???

    2. How many words does it take not not respond to the artcile, but just rant about TDS? 14.

      1. Thanks for this, man.

    3. Whether or not orange man bad, this case was correctly decided.

  2. Another bad day for bigots.


    1. How’s the foreign wife search going Artie? About as well as your search for a hair growth product I guess.

      1. Foreign wife? Hair problems? Next you’ll accuse me of spackling on fake tanning cream, being flabby, contracting coronavirus infection through reckless conduct, and fantasizing about nailing my bottle-blonde, fake-chested daughter, Ivanka.

    2. yea………… sucks to be YOU

  3. Yes, how dare we take money that is intended for national defense, and use that money on a wall for our defense. Instead it should all be spent defending this nation on the other side of the world in Iraq and Afghanistan!

    1. You imply it has to be one or the other. Why not neither? One is legal but unnecessary, the other illegal and unnecessary.

  4. Court decides it disagrees with the choice the executive branch made. We’ve seen a lot of these decisions overturned the past few years.

    Does the law say who gets to decide necessity or whether the DoD has to pass a set of criteria for whether the purpose is military? If it did say that, I’m pretty sure we would see that in the above excerpts.

    So SCOTUS will get to decide whether they want the role of second guessing the DoD on expenditures in times of emergencies. SCOTUS declined to takeover issuance of travel visas from Dept. of State a while back, unsurprisingly.

    We’ll see if they want to seize control of emergency defense expenditures from the other branches, or if they want to weasel out of it by just overturning this particular expenditure based on some one-time BS, or if they decide that the other branches made their bed with the Emergencies Act and they should solve their own stupid problems by writing more specific laws. I think it won’t be option 1. I would bet on option 3.

    1. Constitution says that Congress gets to make the choice as to how money is spent, and they clearly did not want to spend this money on the wall. Congress did give the president some flexibility, but the court ruled properly that in this case the flexibility did not apply.

      1. Because the court disagreed with the reasoning for it. I don’t think the final SCOTUS ruling will be that courts get to randomly second-guess the purpose and necessity of emergency defense actions.

        1. Then expect Joe Biden’s emergency defense actions to include tens of billions for wind farms and solar energy, cut straight out of the weapons budget. Green new dealers will finally have cause to tip their hats to Trump.

          1. The defense lobbyists that will fill Biden’s national security team won’t allow that.

          2. And by that reasoning, Biden/Dems will also allocate funds to tear down the walls on the basis of national defense since the new purpose will be to 100% completely open all borders to illegal .. ahem, undocumented immigrants. No need for borders, no need for visas, healthcare and all other “stuff” to illegals.

            1. I wish the Dems were dumb enough to send bulldozers to the wall to let illegals in.

              Imagine the campaign commercials: Dems bulldoze wall, illegal shows up, rapes, murders good-looking female college student. Pics of wall, pics of border crossers, pics of Dems cheering, pics of family dressed in black at funeral. “I approve this message.”

              1. Imagine how little that would matter in a world with a 106-member Senate; no filibuster; a 13-justice Supreme Court; a 635-member House of Representatives; a 738-member Electoral College; and an ever-improving electorate.

                Or, for short, 2022.

                See you guys down the road a piece.

          3. SCOTUS does not care about your posturing.

          4. “Then expect Joe Biden’s emergency defense actions to include tens of billions for wind farms and solar energy, cut straight out of the weapons budget. Green new dealers will finally have cause to tip their hats to Trump.”

            Tens of billions for wind and solar farms to chop up and burn insects and birds, mess with mammalian and plant bio-rhythms, reduce and degrade arable and grazing lands, and without sufficient energy/ battery storage potential? Biden’s butterfly effect will be writ effing large.

            Our alternative energy sources are not quite there, unfortunately, no matter that solar is sold as sexy and wind as winning. There are serious economic and ecological externalities associated with both.

        2. The idea that the president can not be questioned when it comes to national defense is a concept goes against the very foundation of our three branch government an is in no way supported by the constitution. If you accepted that then you would allow for the president to declare fake emergencies to justify doing whatever they want, which is exactly what happened here.

          1. They can declare the whole law unconstitutional if they want.

            I doubt they will open the door to random second-guessing. The president has infinitely more constitutional authorization to decide what’s necessary for defense than the judiciary does. Courts don’t fight wars and SCOTUS knows better than to start taking over that role.

      2. “…and they clearly did not want to spend this money on the wall.”

        That’s not clear at all. They enacted a vague statute permitting “necessary” (which the OP admits means something less than essential as a term of art) by the DoD. I think it’s a close question but Congress has (improvidently) granted too much authority to the President.

  5. Judge Collins has not covered himself in glory since Trump managed to get him on the 9th. One hopes that he’ll continue to make his weird opinions only via forgettable dissents.

    A perfect appointment for Trump . . . hard to imagine any Trump actions that Collins will not support in his role as an appellate judge.

  6. Todays headline – 9th Circuit rules against Trump.

    Headline in one month – 9th Circuit reserved by Supreme Court.

    1. Jimmy the Dane — What a celebration for Democrats that reversal would bring. Trump’s dream of cutting congress out of the budget process comes true for Biden, right after Trump goes out the door. A few strokes of Biden’s pen, and Trump’s legacy is gone.

      1. Congress has cut themselves out of the budgeting process with 60% of all federal spending being “mandatory”.

        1. They’re irrelevant with a >$1 trillion discretionary spending? This one landed in the rough.

  7. Professor Somin…On this question, whether the situation at the border qualifies as “national emergency” under the National Emergencies Act of 1976, doesn’t the law itself delegate the authority to declare an emergency to the Executive Branch?

    1. The effect of a full delegation would be for Congress to lose it’s authority to set budgets, if the exec could call anything an emergency. In order to avoid an unconstitutional overdelegation, some cognizable limits must have been intended.

      1. There are cognizable limits: He can’t redirect just any money, after all. It has to be money that’s already been appropriated, but not spent, and in specific areas laid out by law.

        Maybe not as much of a limit as you’d like, but it’s not remotely, “Declare an emergency and you get to do anything you want.”

        1. He can spend billions, against Congressional intent, on anything he deems fit.

          That’s a pretty clear case of overdelegation. If line item veto was unconstitutional, hard to see how this is okay.

          Beyond the Constitutional case,tThe textual case is dodgy, and the legislative intent case clearly goes the other way.

          1. “That’s a pretty clear case of overdelegation.”

            The devil can quote conservative positions for his purposes I see.

          2. “That’s a pretty clear case of overdelegation. If line item veto was unconstitutional, hard to see how this is okay.”

            It isn’t clear to me. Starting with the line-item veto, Clinton v. City of New York isn’t a nondelegation doctrine case. The holding was that the line item veto violated the Presentment Clause. The majority passed no judgment on delegation. (See opinion at 447-448.) Kennedy concurred claiming it violated the nondelegation doctrine, too, but he didn’t get sufficient support.

            Unless there is a separate constitutional provision which prevents Congress from delegating power to the President to spend money at his discretion (which is uncontroversial and not even opposed in this case), I’m not sure what the nondelegation doctrine has to say about this issue at all. And since the 9th Circuit didn’t address it in the opinion, I assume (cheerfully willing to be shown wrong) that nobody even raised the nondelegation doctrine.

          3. Congress could try being better. Why would the court want to solve congressional sloppiness?

            They can start declaring many, many sloppy laws unconstitutional. You sure that’s what you want?

      2. Sarcastr0, sounds to me like the Congress needs to fix it, not the Courts.

        1. No – because the delegation Congress supposedly made (not their intent, but ok) is unconstitutional under separation of powers. That’s the Court’s purview.

          1. That is an argument I can buy: The Congress did not have the authority to delegate away their enumerated power to the executive. I think I would rather like that kind of ruling, myself – long term.

            1. The theory benind emergency spending here is there is an emergency and Congress is too slow. They considered border wall spending and declined, so it no longer fits that.

              And don’t worry about green new deal crap. Congress has partially dealt with gw, so it is not an emergency, either.

              And global warming over 100 to 300 years is pretty much mathematically the opposite of an emergency, anyway.

              1. Now if we can just get the courts consistent for other 30 year old declared emergencies, instead of just being fair weather friends driven by omb.

  8. I’ll agree that the National Emergency Act delegates too much power to the President. and if the 9th circuit had simply overturned the act itself on non-delegation grounds, I’d have cheered.

    Overturning a specific application of a law which, as far as I can tell, actually DOES assign all the decisions to the President, OTOH, looks like just more TrumpLaw to me. A decision against the President crafted so that it doesn’t have to be followed once a new President is in place.

    1. Courts are required to rule on the narrowest grounds possible. Maybe someday there will be a case that requires overturning the entire NEA but this case was not it.

      1. It’s not possible then. Ruling that any president can do it except Orange Man Bad means the end of elections.

        How much do you want a civil war?

        1. Open wider, Ben . . . your betters are not nearly done shoving progress down your obsequious, bigoted, whining throat.

          You get to whimper all you want, though.

          1. You’d think that somebody so fond of “open wider” would reflect on the existence of teeth.

    2. You think any ruling against Trump is an example of TrumpLaw.

      Did you read the part about “requires the use of the armed forces,” or are you still calling immigration an invasion?

      1. Lawful immigration, no.

        Illegal immigration, yes.

        Why do you conflate the two?

        1. Not conflating, but it’s ridiculous to call illegal immigration is an invasion.

          1. Millions of illegals is exactly an invasion.

      2. Courts don’t get to decide that, in their opinion, the armed forces aren’t required.

        1. So President Biden can redirect defense funds to the installation of solar panels, as long as he says the armed forces aren’t required?

          1. Sure. If presidents keep doing that sort of thing, Congress might decide to fix their law.

  9. Who cares what they say, just do it anyways.

    They are illegitimate.

  10. Perhaps a little context on Trump’s abuse of the National Emergency Act : On 19Dec18 Congress passed appropriation bills with only a small fraction of the White House’s requested funds for a wall – and those monies designated for “border security”. Up to that point Trump had expended no political capital for his “wall”. He had talked for sure, but words come easy to this president (usually as lies).

    In the morning Trump stated publicly he would sign the bills; in the afternoon Ann Coulter and other right-wing commentators used terms like “gutless” and “joke president” in response; overnight Trump reversed his position 180-degrees and shut the government down.

    Thirty-five useless day of shutdown resulted until Trump caved and signed a temporary spending measure of three weeks. Negotiations with the Republican Senate & Democratic House then resulted in less wall funding than originally offered. Congress was not interested in Trump’s branding project.

    So that’s how we ended up with an “emergency” : From Trump’s sweaty panic after criticism by fringe-garbage like Coulter. From the absolute & repeated refusal of Congress to fund a public relations whim. Sounds like a flagrant abuse of the NEA to me.

    1. It doesn’t strike me as a flagrant abuse of the NEA, but a natural consequence of it. Congress knows that people like Donald Trump can be President. In light of that, they shouldn’t be handing broad authority to the Executive in the first place.

      1. Flagrant abuse or natural consequence?

        Maybe both, because here’s the question : What other use of the National Emergency Act came anywhere close to Trump’s action as abuse? The law has been used by presidents to evade going to an indifferent or dysfunction Congress, almost exclusively on minor issues generating minimal or no controversy.

        So – yeah – it was a law passed by Congress to hand-off their own power to the White House, and that’s how it’s functioned. But where’s another example of a president using the NEA to thwart congressional action on an issue hotly debated – where Congress specifically denied the appropriation requested?

        The NEA may have been a mistake, but Trump made it corrupt. That’s sadly predictible, because he slimes everything he touches.

        1. Oh, there’s corruption here, but it’s mostly Congressional corruption.

          The general nature of the corruption is that Congress loves the perks that come from having power, but hates responsiblity. So they’ve delegated a lot of their power to the executive branch, retaining just enough to keep the kickbacks and graft coming.

          The specific corruption here is that Congress wants a high level of illegal immigration, because illegal immigrants make great serfs, they are easily intimidated, and will accept low pay. Business loves having them around, and the cheap gardeners and nannies are popular with the upper class, too.

          But high levels of illegal immigration aren’t popular with the voters.

          So Congress maintains on the books laws restricting illegal immigration, while denying enforcement the resources necessary to actually be successful.

          Along comes Trump, campaigning on enforcing those laws Congress enacted, (So they ARE the law of the land.) but never meant to actually see enforced. And illegal immigration drops dramatically in anticipation of enforcement. Then Congress ups the obstruction, courts intervene to keep the laws unenforced, and suddenly illegal immigration is spiking. That was the emergency.

          So Trump finds legal ways to resume enforcement, and Congress is mad, because they never meant for those laws to be enforced. But Congress dares not admit they don’t intend for them to be enforced, so can’t muster the votes to end the state of emergency, or enact stronger impediments to enforcement.

          All through this Trump is doing what he campaigned on, and using laws Congress enacted. The corruption is Congress’s, not his.

          1. Quote : “Then Congress ups the obstruction, courts intervene to keep the laws unenforced, and suddenly illegal immigration is spiking. That was the emergency.”

            Anyone one else care to see Brett justify this load of malarkey? It would be painfully funny to watch him try. As I point out above, the “emergency” was caused exclusively by Ann Coulter & others taking to the airwaves to call Trump “gutless”. It certainly wasn’t caused by fantasy court decisions to “keep the laws unenforced, and suddenly illegal immigration is spiking”

            Apparently that hogwash is how Brett justifies Trump’s corruption of the law. Well, he’s had to justify a lot of corruption by Trump these past four years. Let’s hope a Biden victory relieves him of that ugly responsibility.

            1. Already shoving the illegal immigrant caravans into the old memory hole, are we?

              NBC News: February had highest total of undocumented immigrants crossing U.S. border in 12 years

              “WASHINGTON — The number of undocumented immigrants crossing the southern border last month was the highest total for February in 12 years, according to statistics released by Customs and Border Protection on Tuesday.

              In 28 days, and in the same month President Donald Trump declared a national emergency in order to build a border wall, 76,103 immigrants without the needed documentation to enter the U.S. either presented themselves at legal ports of entry or were apprehended by Border Patrol between ports of entry.

              It is the highest total for February since 2007, DHS officials said at a press conference Tuesday. It is also the highest single month total since Trump was elected in November 2016. Crossings hit 66,842 in October 2016, just before Trump’s election.”

              And, again, Trump’s supposed corruption consists of attempting to enforce duly enacted laws Congress really doesn’t want enforced, but can’t repeal because they’re popular.

              1. Oh, yeah…well, the caravans have become a thing the right stopped talking about because they never materialized and it was just Trump whipping up nativism via a politicized DHS.

                The left still brings it up as an example of Trump’s racist scaremongering.

                1. I’m not sure what you mean, “they never materialized”; Several fetched up against our border with Mexico, and even tried to bust through by force.

                  We did eventually reach an agreement with Mexico and points South to obstruct the caravans, but they absolutely were a real thing at the time Trump declared the emergency. Still are, for that matter. Guatemala managed to turn some of them back, but the caravan split up into smaller groups and are still headed North.

                  Is this another one of those, “or your lying eyes” things?

            2. Southwest Border Migration FY 2020

              As you can see, illegal immigration at the Southern border was perking along at between 30-50K per month. Trump takes office in 2017, and in anticipation of serious enforcement, illegal immigration drops off, reaching a low of about 16K a month in mid-2017.

              Then the court fights start, and it begins creeping up again, by the end of 2018, it’s up to 50K per month. And in 2019, the spike starts. In February it’s reached about 80K per month, and multiple caravans are headed North. Trump declares a national emergency on the border.By May we’re seeing 144K a month intercepted at the border! Then it starts dropping again, and is back to 50K by the end of the year.

          2. How can Congress’ decision to set legislative policy different from what the President wants ever be characterized as “corruption?”

            Only supporters of a prospective dictator would use terms of criminality to describe an ordinary policy disagreement with an opposing party who won elections in a legislature.

            The supporters of the President of a Constitutional republic, who want a Constitutional republic, would never use such language to describe a policy difference with their opponents.

            There are many policy arguments in favor of reducing restrictions on immigration. Immigration has been completely open for large stretches of our country’s history and positions favoring less restrictive immigration have been normal throughout our country’s history.

            The idea that supporters of more open immigration are corrupt and the only possible reasons anyone would support such a thing would be laughable if it weren’t frightening.

            A great deal of my effort has been to prevent a political culture in which people routinely think of their political opponents as criminals. No republic can survive long in such a culture. It is one of my main arguments for avoiding overconstitutionalizing political differences. Characterizing ones political opponents as opponents of this country’s very constitution is a small step away from calling them traitors and criminals.

            Every time courts do this, they encourage politicians to do the same and think in the same way, and the country is further destabilized.

            It leads to arguments like yours. This republic cannot survive a political culture in which arguments like yours over routine policy differences are common.

            1. “How can Congress’ decision to set legislative policy different from what the President wants ever be characterized as “corruption?””

              Publicly enacting laws, and privately making sure they’re never being enforced, doesn’t strike you as more corrupt than coming into office campaigning on trying to enforce the laws, and then actually trying?

              1. I don’t think Congressional Republicans are corrupt for their inconsistent position on immigration. There’s too much hiding in plain sight. (How did you magically crack the code?) I think they get elected with tough talk and then take a moderated position because they (a) don’t believe the tough talk is a good idea in the first place or (b) find out that tough talk isn’t enough to govern.

                To the extent you think Congress rather than Congressional Republicans is acting corrupt, disagreement doesn’t prove that. Congress is a body politic and has many diverse interests. It may on the one hand want X but on the other hand want not-X. Every law is a compromise.

  11. I think the surer route here is to note both that the situation is not a genuine emergency under the National Emergencies Act, and that under the Steel Seizures cases the President lacks eminent domain powers witjout Congressional authorization. I am also inclined to agree that the construction here isn’t really for the military at all.

    But if all these other hurdles were passed and it were, I found myself hesitant to use this case to construe the word “necessary.” If we were in a war, I would not want the courts stepping in to decide which military construction projects were really necessary and which weren’t.

    I think in a genuine emergency, it becomes reasonable for the courts to construe Congress’ delegation of discretion of authority somewhat broadly and not to interpet congressional language as a license for courts to micromanage.

    I think my basis for challenging the legality of Trump’s action is not that Congress didn’t give the President authority to deal with a genuine emergency, bit that this situation isn’t a genuine emergency in the first place.

    I would leave things at that and not create precedents hamstringing a future President’s ability to deal with a real emergency.

    1. The problem with this line of reasoning is that the only person authorized to decide if there’s an emergency is the President.

      And, as I pointed out immediately above, there actually was something emergency-like going on at the time.

      This emergency declaration was far less abusive than a lot of previous ones, in that regard.

      1. First, statutory interpretation is what courts do. Congress sets the conditions here. If Congress loosens control over its power of the purse in an emergency, it is for courts to decide if an emergency has occurred in the sense Congress meant by that term. The term is Congress’ not the President’s.

        Second, the fact that Congress deliberated over authorizing exactly this construction money and decided not to is strong evidence that this is not an emergency in the sense Congress meant.

        Standing considerations will often prevent courts from reaching questions involving foreign appropriations. It’s somewhat unusual that the project involved here takes place entirely on US soil and has major affects on neighboring property holders, factors that give rise to jpeople with an interest in and judicial standing to challenge the decision in ways some other emergencies haven’t.

        1. There’s not a lot of room for statutory interpretation here, if you read the National Emergency act.

          And, as I point out, there were dramatic changes in the rate of illegal immigration right about the time Trump declared the emergency.

          I really don’t see this ruling standing, and I really despise the National Emergency act. But it ought to be struck down on non-delegation grounds, not based on a judge somewhere second guessing the President on a decision the law explicitly assigns to him.

    2. “that the situation is not a genuine emergency under the National Emergencies Act”

      I did not feel that the 2015 unrest in Burundi was an actual emergency, nor the 1997 Sudanese sanctions…

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