Supreme Court

SCOTUS Takes a Border Wall Case

Among today's cert grants were a case concerning the border wall and another on the Trump Administration's Migrant Protection Protocols


The Supreme Court granted certiorari in three cases today: Trump v. Sierra Club, Wolf v. Innovation Law Lab, and Lange v. California. The Court took no action (as yet) on a pending petitions challenging election rules in Pennsylvania.

Trump v. Sierra Club is the most prominent of today's grants, as it concerns the lawfulness of border wall construction. Specifically, the case concerns whether the plaintiffs have a cause of action to challenge the Defense Department's reallocation of funds to pay for construction of a wall along the border with Mexico and, if so, whether the Defense Department's actions were lawful. This grant is not particularly surprising. Judge Collins' dissent on the Ninth Circuit panel below was a de facto cert petition.

Wolf v. Innovation Law Lab concerns a challenge to the Trump Administration's Migrant Protection Protocols, aka the "remain in Mexico" policy under which asylum seekers can be forced to wait outside the country while their asylum requests are pending. At issue in this case is not only whether the Trump policy is consistent with the relevant statutes, but also whether this policy change was required to go through notice and comment under the Administrative Procedure Act and whether the district court's order of a nationwide injunction was proper. Whatever the Court decides on the merits, this case presents another opportunity for the Court to resolve the lingering dispute over universal injunctions. (Note: It's interesting to think that if the Court constrains so-called nationwide or universal injunctions, a Biden Administration may be the primary beneficiary—much like the Obama Administration was the immediate beneficiary of the relaxed approach to agency reversals adopted in Fox v. FCC.]

[For more on national injunction aspect of this case, see Sam Bray's post here.]

The final grant, Lange v. Californiahas the feel of a case granted for error-correction purposes. The question presented is:

Whether the pursuit of a person whom a police officer has probable cause to believe has committed a misdemeanor categorically qualifies as an exigent circumstance sufficient to allow the officer to enter a home without a warrant.

It is hard to see how the Court answers this question in the affirmative. Unless I am missing something, it seems like this could be 7-2, 8-1, or even unanimous.

Also today, Justice Thomas dissented from the denial of certiorari in Rogers County Board of Tax Roll Corrections v. Video Gaming Technologies, a case concerning the implications of McGirt v. Oklahoma for state taxation of video gaming equipment owned by non-Indians but located on tribal lands. The Court may not have been ready for this case, but it will have to consider the fallout from McGirt in due course.

Finally, Justice Gorsuch wrote an opinion respecting the denial of certiorari in Bovat v. Vermont, an interesting Fourth Amendment case out of Vermont. Joined by Justices Kagan and Sotomayor, Justice Gorsuch expressed concerns about how "knock and talk" investigations often "test[] the boundaries of consent" and evade Fourth Amendment limits on police searches and made clear his belief that the Vermont Supreme Court had erred below. Why was this only an opinion respecting denial instead of a dissent? One possibility is that the justices were unsure there would be five votes for reversal without Justice Ginsburg, so they did not push too hard for a grant.

[Note: Post edited to add a little more detail on the MPP.]

NEXT: National Injunction Case Added to the Court's Docket

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  1. Gorsuch’s statement in Bovat is worth reading.

    Also, if you know Spanish, kind of fun that the leading case on curtilage is called “Jardines”.

    1. It’s very well written. He produced a couple of early dissents which had some uncomfortable phrasings, that gave the impression that he was trying to carve out a slightly folksy persona, but this one is excellent. Clear, sober, easy to read and persuasive.

    2. The Bovat statement makes a lot of sense in the context of reminding the courts of Jardines, without risking eroding it with a bad case about a “deer jacker.” In many ways it’s a “have your cake and eat it too” outcome.

  2. I am sure the SCOTUS will have no problem affirming that

    “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law;”

    means that after a month long stand off where Congress refused to fund the wall, Trump redirected money to build the wall is unconstitutional.

    1. I don’t think so Molly — imagine the consequences of a POTUS not able to shift allocations in an “emergency.” Most of the COVID spending came out of existing budget lines, at least initially. (The two hospital ships come to immediate mind, that was all DoD money from elsewhere in the DoD budget.)

      Obama did the same thing towards opposite ends, transporting and resettling illegal aliens in the interior of the country. Again, much to the chagrin of the then-GOP Congress.

      I think someone like Kagan is bright enough to understand what this would do to a President Biden.

      1. Ah, but these are “originalists”. Their job is to interpret the constitution as written, not to make policy, and not to determine what the constitution should say. That is what ACB said.

        1. The question is really the extent to which Congress can delegate spending choices, because Trump’s border spending has been in consequence of appropriations, and statutory authority Congress gave Presidents to redirect that spending.

          1. This seems to beg the question the Court will decide.

          2. Quoting from the Scotusblog link, there is

            a proviso in Section 8005 of the Department of Defense Appropriations Act that the secretary’s authority to transfer funds internally between DOD appropriations accounts “may not be used unless for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress”;

            That seems pretty clearly to say that the transfer is unlawful, so the issue seems to be whether the Sierra Club has a cause of action.

            1. Funds weren’t denied by congress. They simply weren’t specifically appropriated for a wall by congress.

              1. There was a month long stand off on this very issue. Congress did not put it in the bill, thus it was denied. It is not up to Congress to specify every item they do not fund.

                1. That’s not what “denied by congress” means.

                  1. Your interpretation is absurd–by this logic, Congress would not only have to enumerate all of the things that they are appropriating money for but also the infinitely long list of other things they don’t want the money spent money on. That makes the exclusion basically meaningless.

                    1. They routinely pass bills to prohibit funds from being spent on specific things. Google “Hyde Amendment”.

                    2. Way to not respond to the substance of the point at all.

                      In any case, the Hyde Amendment is the exception that proves the rule since there are appropriations that could clearly be used to pay for abortions without it. Generally Congress doesn’t need to do this because by choosing not to appropriate money for something, it does not need to concern itself as to whether or not money will be spent on it.

                      If your interpretation was “correct”, ever appropriations bill would need a list of everything that Congress considered spending money on and decided not to.

                    3. The National Emergencies Act only covers defense. If congress wants to deny the President flexibility on spending when an emergency is declared, they should repeal or change the National Emergencies Act.

                    4. “If congress wants to deny the President flexibility on spending when an emergency is declared, they should repeal or change the National Emergencies Act.”

                      On this particular point, they don’t need to do so because they already included language in the act to prevent the President from re-allocating funds to which they’ve already denied funding, such as a border wall.

                      Or, let’s look at this from a simple “what do words mean” perspective. Congress used the word “denied” in Section 8005, not “prohibited”. The relevant definition of “deny” is something like “to refuse to grant”, e.g., denied a refund. That is, someone (the President) asked for something and hey refused to give it to him. That is exactly what happened here. It’s true that they did not “prohibit” (“to forbid by authority”) as they did with the Hyde Amendment, but since the default is not to be able to spend money on whatever the President wants they don’t need to.

                    5. It’s not an act of Congress to not appropriate funds in a bill. Congress did not act to deny funds.

                    6. It’s not an act of Congress to not appropriate funds in a bill.

                      It is expressly unconstitutional for the executive to re-appropriate funds that Congress has earmarked for another purpose.


                    7. Maybe they strike down the National Emergencies Act. I don’t think they will do that.

                  2. Congress puts in it’s appropriation bills the rules by which the executive may ask for permission to move funds.

                    Why specify the rules if all reprogrammings are by default permitted?

                    You are being very silly.

                    1. I didn’t write the National Emergencies Act.

                    2. This is a shiny new argument, dealt with handily by many below.

                      Your old argument: Funds weren’t denied by congress. They simply weren’t specifically appropriated for a wall by congress. looks abandoned. That’s a good move. It was very silly.

                2. If Congress had specifically denied spending on the wall in the bill, then it would be “denied” (as in the “Hyde Amendment”). That’s not what happened though.

                  If Congress had specifically authorized spending on the wall in the bill, then, of course, it would be authorized. That’s not what happened though.

                  Failure to approve something is not the same as denying it when the quoted section allows diverting of funds (the wall, supposedly, being both a “higher priority” than other things and an “unforeseen military requirement” – both claims, of course, being open to argument) barring a specific denial of that expenditure by Congress.

                  Congress was free to explicitly deny “wall” expenditures – they chose not to. Perhaps because they wanted the wall to continue to be built with diverted funds, perhaps because they couldn’t override a veto that would result from including such a restriction, perhaps, perhaps, perhaps…

                  Who knows what Congress’ failure to provide specific approval of “wall” expenditures should be interpreted as. That is not something the courts should delve into. Perhaps 90% of Congress wanted to provide funding but simply couldn’t quite reach agreement on the exact amount or the time-frame so punted – that would hardly be a “denial” that would override a grant made in another statute. Perhaps the bill was being modified and at that moment didn’t include approval of “wall” expenditures but the pizza got delivered early and was getting cold so Congress just voted on what was in front of them realizing that Trump could proceed as he was and get the wall built anyway and the lawmakers could eat the pizza while it was still warm – a win for everyone.

                  1. I address this above to Ben_, but you are trying to make the word “deny” a synonym for “prohibit”, when actually they mean different things.

                    The point of Section 8005 is to give the President flexibility to divert funds in the event of an unforeseen emergency, not to allow him to ignore Congress in areas where he’s already asked for money and been turned down.

                    1. The quoted text actually says [emphasis added]

                      and in no case where the item for which funds are requested has been denied by the Congress

                      Has Congress ever denied the item (a border security structure)? Not to my knowledge.

                    2. Ah, now you’re at least bothering to make the argument that the Trump administration laid out in the case–that the specific funding item wasn’t denied, and that’s what’s required by the law. (This is a much better argument than Ben_’s and your previous assertion that Congress had to pass a law in order to deny funding.)

                      Of course, the Ninth Circuit has a pretty good response to this argument that seems correct to me:

                      “Defendants urge that “an ‘item for which funds are requested’” refers to “a particular budget item” for section 8005 purposes, so “Congress’s decisions with respect to DHS’s more general request for border-wall funding [are] irrelevant.” But this interpretation, which would require that a specific funding request be explicitly rejected by Congress, is not compatible with the plain text of section 8005. First, the statute refers to “item[s] . . . denied by the Congress,” not to funding requests denied by the Congress, suggesting that the inquiry centers on what DoD wishes to spend the funds on, not on the form in which Congress considered whether to permit such spending. Second, Defendants give the term “denied” a meaning other than its “ordinary, contemporary, and common” one. United States v. Iverson, 162 F.3d 1015, 1022 (9th Cir. 1998). In common usage, a general denial of something requested can, and in this case does, encompass more specific or narrower forms of that request. To illustrate, if someone offered a new job asks her potential future employer for a larger compensation package than was included in the job offer and the request is denied, she has been denied a five percent higher salary even if her request did not specifically ask for that amount.”

                  2. Jb: show us the act of Congress where the text specifically mentions denying funds for the wall.

                    1. Wow, way to miss the whole point.

                    2. SCOTUS makes rulings based on laws, not your rhetorical points.

                      Your rhetorical points are good. I thought we were talking about what SCOTUS was likely to do.

                    3. Yes, indeed. I think the SCOTUS will look at the actual meaning of the words in the appropriations act, which is why I gave some reference definitions above. You just keep insisting that Congress has to prohibit something as if that is the same thing as denying, but the dictionary disagrees with you and presumably SCOTUS will as well.

                    4. The National Emergencies Act is an act of Congress that specifically allows funds to be used for emergency military purposes.

                      Please explain how that could ever happen if all funding is automatically denied unless it is specifically appropriated. Are you saying it was the intent of Congress that no emergency could ever be declared and no funds could ever be used under the act? Congress was just joking when they wrote it I guess.

                      Or this line of reasoning does not make sense.

                    5. The National Emergencies Act does no such thing. Section 8005 of the DoD Appropriations Act of 2019 does include a section that allows money to be transferred after an emergency is declared pursuant to the NEA.

                      To answer your question, though, since Section 8005 explicitly deals with unforeseen emergencies, during an emergency it allows the executive to transfer funds to programs that Congress did not previously consider and choose not to fund. Since the emergency was unforeseen, there is no reason that Congress would have had the opportunity to consider the funding request in the past. What Section 8005 does not allow is for the President to decide to fund programs that Congress already considered and denied funding for by virtue of choosing not to appropriate funds in the appropriations act. It all makes a lot of sense if you look at it through the lens of a bona fide unforeseen emergency and not Trump’s end-run around Congress’s decision to deny funding to his pet project.

                    6. That’s quite the narrative. The counter-narrative actually rests on what happened.

                      It’s an emergency because an emergency was declared. Someone decides. The National Emergencies Act says the President decides. Not you, not congress, not the courts, not the narrative.

                      Congress has taken no official action to deny funding for the wall. No bill was enacted. Congress speaks by enacting laws. Not by narrating a story.

                      Congrats on actually coming up with a compelling-sounding argument though. Much better that the usual.

                    7. ” that Congress did not previously consider and choose not to fund.”

                      Pity the law doesn’t actually say anything like that.

                    8. “Pity the law doesn’t actually say anything like that.”

                      Sure it does, which is the whole point of this thread of discussion:

                      “Provided, That such authority to transfer may not be used…where the item for which funds are requested has been denied by the Congress”

                      Ben_ seems to think that something isn’t “denied” unless Congress has explicitly prohibited it. I think that’s clearly not the meaning and I provided some definitions to support my point. FWIW, even the Trump administration doesn’t take Ben_’s view and argues that Congress may have denied more general funding for the wall but not the specific line item in question. Ultimately, it’s a pretty straightforward question of statutory construction and I don’t see any reason to think SCOTUS is going to see the text any differently than the Ninth Circuit did:

                      “Construing section 8005 with an eye towards the ordinary and common-sense meaning of “denied,” realworld events in the months and years leading up to the 2019 appropriations bills leave no doubt that Congress considered and denied appropriations for the border barrier construction projects that DoD now seeks to finance using its section 8005 authority. Long before the emergency declaration and DoD’s reprogramming at issue here, the President made plain his desire to construct a border barrier, requesting $5.7 billion from Congress to do so. Throughout 2018, Congress considered multiple bills that would have supported construction of such a barrier; it passed none of them.”

                    9. “Ben_ seems to think that something isn’t “denied” unless Congress has explicitly prohibited it.”

                      He’s right about that. Congress does from time to time explicitly prohibit spending money on things. They haven’t done so with a border wall.

                      Mere failure to allocate money doesn’t constitute denying it, or else the power to redirect funds becomes a nullity. You can’t redirect funds without spending them on something they weren’t appropriated for!

                      It’s over-delegation, and I’d be happy to see the NEA overturned on those grounds. I just don’t want to see a ruling that applies to Trump and no other President. I’m sick and tired of TrumpLaw.

              2. That’s probably incorrect – Congress gets very granular in their defense appropriations compared to other agencies where that is left to executive discretion with OMB oversight.

                1. “Denied by congress” means congress puts language in a bill (that gets passed and signed into law) saying funds may not be spent on something.

                  1. You don’t think that isn’t implied by specifying funds must be spent on some other thing?

                    1. Implications probably won’t guide the SCOTUS decision on this.

                    2. Implications is how statutory interpretation works.

                    3. The National Emergencies Act has language that express congress’ intent directly. Will implications matter more than the language of the law congress passed? Not likely.

                    4. “Denied by congress” means congress puts language in a bill (that gets passed and signed into law) saying funds may not be spent on something.

                      Abandoning your old argument once again, eh?

                    5. Old argument? No idea what you mean.

                      Maybe you can answer:

                      The National Emergencies Act allows the President to declare an emergency and spend defense funds other than where they were specifically appropriated.

                      If all funds not specifically appropriated for a purpose are automatically “denied” for that purpose, then what does the National Emergencies Act do? How does it do anything at all? Was Congress just joking when they enacted it?

                      Or does this “denied” line of reasoning make absolutely no sense?

                  2. You are demonstrating my point quite well. The plain reading of the Constitution says only Congress can authorize funding and the plain reading of the law is clear the the funds can not be re-directed for the wall. But somehow many are arguing to read the Constitution and law to mean the exact opposite of what it says.

                    1. Only if you mistake not acting to specifically appropriate funds as acting to deny funds.

                    2. A challenge based on the “plain reading” of the law would not hinge on Congress having specifically denied spending money on the wall (such as they did long ago for spending money on elective abortions) because they didn’t do so. Such a challenge seemingly would hinge on if the wall was “higher priority” than what the funds were originally slated for and if the wall was an “unforeseen military requirement” along with the degree of latitude that the President has in determining those factors.

                      The fact that Congress failed to, when given the opportunity, explicitly deny diversion of funds to the wall is, itself, an indication that they didn’t intend to deny such diversion.

                    3. Either there are limits to what an emergency is or it’s an overdelegation.

                      If there are limits, Trump will have a very hard time proving that he stayed within them, since he acted based on being pissy with Congress.

                      Which is why it turns on standing.

                    4. If there are limits, do you really think SCOTUS will declare the courts more suited to decide a national defense emergency than the President and the DoD? Courts don’t fight wars and SCOTUS has historically understood that.

                      Maybe they will make up new delegation rules. That would be a major, complicated new decision that could lead to a hundred new cases on a hundred other topics.

                      I would bet they just tell congress to enact the results they want. Courts don’t have to fix everything Congress broke.

                    5. The Court would not be deciding anything about the substance, only about the level of delegation contained in the language of the statute.

                    6. Yeah, maybe they make up complicated new rules for delegation. Maybe they just tell congress to fix their laws if they want them fixed.

                    7. Maybe you should speculate more.

                      Separation of powers issues are not something to be left solely to the political branches to decide. They are constitutional issues, and the branch that does constitutional review is the judicial one.

                    8. If they want to. Congress could also fix their law any time they want to.

                      Will the court get a majority to make new rules on delegation? I would say that’s not super likely. But I don’t know.

                  3. The plain reading of the National Emergencies act and other statutes Trump is relying is that he CAN do it. He should lose, on non-delegation grounds, but I doubt the Supreme court is ready to revive the non-delegation doctrine.

                    I bet they are ready to drag their heels for a few weeks so that they can follow the election returns, though.

                    1. The plain reading that anything counts as an emergency, even Congress not acting, would be overdelegation.

                    2. Like I said, should be struck down on non-delegation grounds. But if you’re not going to do that, Trump likely prevails, because the NEA does over-delegate.

                    3. Or us constitutional avoidance, and read it in a less crazy way.

                    4. “Constitutional avoidance” shouldn’t normally get you to a result that’s contrary to the text of the law, but Roberts does have a history of that sort of thing.

              3. There’s also the issue of “unforeseen.”

            2. “unless for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress””

              Border security is an “unforeseen military requirement” and each wall project is a different “item.” Language has been twisted worse, “women” meaning “transgendered” comes to mind.

              1. There is no way that border security is an “unforeseen military requirement”. It has been an issue for decades and nothing changed between the time Congress passed the budget law and the time Trump declared his fake emergency a day or so late.

                1. “and nothing changed between the time Congress passed the budget law and the time Trump declared his fake emergency a day or so late.”

                  Now, that’s where you’re wrong.

                  1. He declared the fake emergency days after the bill was signed. That link shows month-to-month changes, not day-to-day. The situation was well known and not in anyway unforeseen.

                    1. Fine, demonstrate where, in the NEA, the time frame an emergency must develop over is specified. All I see defining “emergency” is, “when the President says there’s one.”

                      Absurd, but I’m not the person who drafted it, or one of the members of Congress who enacted it.

                    2. Brett: Well, the emergency has to be “unforseen”, so that implies that it can’t be pre-existing.

                    3. Brett: That is a level of unchecked power that I do not think anyone should have, and that level of power is not supported by the Constitution, and certainly not from an originalist perspective.

                    4. Per the NEA, an “emergency” has to be nothing more than “the President says there’s an emergency”; There’s a long, long record of Presidents declaring things emergencies that aren’t particularly “emergent”.

                      I’d love to see the NEA overturned. Not just a ruling saying that Presidents named “Donald Trump” can’t use it.

                    5. “Per the NEA, an “emergency” has to be nothing more than “the President says there’s an emergency”; There’s a long, long record of Presidents declaring things emergencies that aren’t particularly “emergent”.”

                      This may be true in terms of declaring an emergency under the NEA, but to reallocate funds under Section 8005, the emergency also has to be “unforeseen”. Both the district court and the Ninth Circuit found that the administration’s action didn’t meet this requirement.

                    6. Can you provide a cite for where the word “unforeseen” appears in the law?

                    7. Brett. Yes, here is a link to the Defense Appropriations Act of 2019:


                      Specifically, search for Section 8005 which is the authority that the Trump administration is relying upon to redirect funds to the wall. It includes the following language:

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

                      (emphasis mine)

          3. And they’ve been allowed to delegate almost every time before. So it would be substantially new for the court to put together a set of rules that deny it this time. Unless the do a one-time-only John Roberts special rule, which is a lot less likely after ACB joins the court.

            Trump derangement seems to hide the obvious from otherwise capable people.

            1. The point is that the authority was not delegated. Clear reading of the law demonstrates this. Those arguing otherwise need to use a very twisted interpretation.

            2. Trump derangement seems to hide the obvious from otherwise capable people.

              It’s certainly hiding it from you.

    2. *cough*

      Obamacare risk corridors.


      It’s wrong no matter who does it, but from a plausible reading of existing law, Trump did have the authority, Congress having outsourced it’s lawmaking to executive branch agencies (mostly) in the previous decades in a large measure.

      1. I thought the trick with Obamacare risk corridors was that there were insurers with legal rights, and a bottomless “claim settlement” appropriation from which their claims could be met.

        In a wall case, you would need some contractors with claims who could dip into the same bottomless appropriation.

        How would it go if the executive signed some contracts to do something Congress had not approved, and then the contractors claimed on the bottomless fund ?

        1. There will always be a legal justification, regardless of whether it’s correct or not, will be another matter.

          My understanding is that a GOP Congress thought it had eliminated those payments, Obama disagreed, a lower court agreed with the GOP, then SCOTUS overruled the lower court. It’s FUBAR, akin to this wall funding situation.

          If you’re creating a hypothetical wall building situation to make it identical to the Obamacare risk corridors situation, I respectfully demure, because I’m admittedly not knowledgeable enough on the latter.

          1. I can’t believe Trump didn’t quietly reverse course and send the money back to the military after an American outpost in Kenya was overrun by Al Qaida killing 3 Americans?!? So with Benghazi it made sense Stevens wanted to keep a low profile and hire local security guards but in Kenya we had tens of millions of dollars worth of military assets and Trump still hired local security guards to defend an outpost with barely any physical security. So that is why Trump will lose in a landslide…the people that saw Benghazi as a failure to protect Americans overseas see Trump’s Kenya failure as worse than Benghazi.

            1. If Trump loses, it won’t be because of anything that happened in Kenya, let me assure you. I bet not 1 in a thousand Americans have any idea wtf you’re talking about.

              1. Also, Kenya is a mostly friendly government that will help with security. Hillary and Obama turned Libya into a Somalia-like failed state with no effective government.

                1. Not to mention the political aspects of needing to respect the sovereignty rights of a mostly-friendly government — and realizing the problems that an American security force would cause it.

              2. I know you don’t care about the Americans that died because Trump failed to protect them…but Americans that cared about Benghazi care about Trump’s failure.

          2. There will always be *a* legal justification, but I think it needs to be a semi-plausible justification. Obamacare risk corridors at least related to the overall purpose of the statute, which was health care. The border wall, not so much.

            Now, if someone is a consistent originalist (as, thank God, I am not), I think Obama should have lost and so should Trump. We’ll see what the so-called originalists on the court actually do. I lost my faith in originalists being consistent when Scalia sided with the war on drugs in Raich.

            1. Well, my friend, based on the numerous threads here on the border wall and its funding, there is a very plausible justification.
              But, like beauty, it’s in the eye of the beholder. One Congress didn’t foresee decades ago when it passed those laws, but alas, it’s still there.

              Now, be honest, did you ever have faith in Originalist jurisprudence in the first place? Don’t kid yourself, or us. As for not being an Originalist, the wonderful part of being a living constitutionalist such as yourself, is that it ultimately matters very, very little *what* the legal justification is, as long as the policy goal is something that you like. And thus likewise, the end justifies the means. This is, of course, not to say that anybody is as pure as the wind driven snow here, but lets not kid ourselves. When you start from from a position that the policy intent matters more than the law, what does one reasonably think the result will be?

            2. Defending the border with a wall is not related to military defense? That’s logical in Orange Man Bad world?

              1. Why do you think we don’t have troops massed at our border, Ben?

                1. The Posse Comitatus Act, a real wonder of work by the segregationists, but which does not prelude building a wall, or using the military for support.

                  That said, you’re “on record” as it were on this blog saying that hordes of illegal migrants coming en masse is not an “invasion.” It is not a military invasion where uniform troops with guns shoot other uniformed troops with guns.

                  What you’d do about it is another matter, likely offer them a warm milk, a blanket, and citizenship papers.

                  1. It is not a military invasion where uniform troops with guns shoot other uniformed troops with guns.

                    The Viet Cong did not wear a uniform. And the “Global War on Terror” (which Congress approved) involves terrorists who largely don’t use guns. 9-11 was done with box cutters…

                    1. An “invasion” implies an armed military force seeking at least limited conquest by force.

                      None of that is going on here, not remotely.

                      And the 9/11 terrorists can’t reasonably be called “invaders,” either. Applying the term as you are doing is just utter RW bullshit.

                    2. Do home invasions involve uniforms?

                      An “invasion” implies nothing more than entry against the will of whoever has the right to say you can’t enter.

                    3. Talk about tendentious arguments. That makes as much sense as “Indians not taxed,” which is to say none at all.

                      We are talking about invasion of a country, which is not what the immigrants are trying to do.

                    4. No, it’s precisely what they’re trying to do: Immigrate to a country that doesn’t want them immigrating.

                      That’s an invasion.

                  2. Hordes is tipping your hand a bit. What do you think the daily flux is?

                    But yeah, I’ll stand by an invasion being a military action, and migration is not that.
                    And that those trying to do violence to the definition are essentially advocating for murder, for what else does one do with invaders but repel them with arms?

                    1. Idgaf about “tipping my hand”. I’m not a Struasian. I make straightforward arguments and occasionally ask questions like a wannabe Socrates (because I am not that wise, few are). Why do keep trying that stupid debate tactic with me? Hang it up in the closet where it belongs.

                      How many, in say, these migrant caravans (that Trump pressured Mexico to stop) does it have to be before, in your mind, it’s a “horde”? 1,000? 2,000? 7,000? Or will you be like Abraham, and say “God, if you can find but 50 innocent DACA dreamers, then it’s not a horde?”

                      Do *you* know the yearly totals? It took just moment to look up; it varies, but it’s tens to hundreds of thousands. And, there are 10-14 million illegals already in the U.S.. That’s alot, I don’t care who you are.

                      But like I said, you’d give them warm milk, a blanket, and citizenship papers.

                    2. Hordes is not the right word to use – it’s an old and worn racist narrative.

                      Those caravans were never actually a thing; did you not see that they evaporated once Trump stopped pushing them?

                      You have no idea what my preferred policy is. Even though I’ve told you before. Illegals are a new slave society and a shame upon our country as we continue to rely on their cheap labor. But they are the victims of the system, not the victimizers.

                    3. Now we’ve moved on. You’ve put on the language police lights and sirens.

                      The illegal immigrant caravans stopped because Trump pressured Mexico to stop them. And the Mexicans themselves were pissed about having to deal with the foreigners. Mexicans want a free pass to come into the U.S., many consider it a right because a large swath of the U.S. was at one time Mexico. But they don’t want Hondurans mucking that up either. And let me assure you, there most certainly were a “thing”.

                      Then enlighten us, what should we do with illegals at the border, and the ones here? And if either policy proposal ends in a path to citizenship, then yes, you (figuratively at least) want to offer warm milk, a blanket, and citizenship papers.

                      And I agree that the cheap foreign labor thing has gone on far too long; the left wants a client class and the non-nationalist right wants the cheap labor; they were in cahoots.

                    4. “I’ll stand by an invasion being a military action, and migration is not that.”

                      Historic nonsense.

                      European history is filled with groups/tribes peacefully migrating first and then rebelling/asserting political control. All sorts of Germanic tribes into the Roman Empire for instance..

                      Or US history. Pilgrims and Puritans did not use force, it was all peaceful, until it was not.

                    5. Bob, what the Xtrogoths did was an invasion. They had arms, they sent their men in first. They appropriated land.

                  3. The Posse Comitatus Act,

                    WTF are you talking about? If the Mexican Army were moving to the border, seemingly planning to try to retake Texas, nothing in the Posse Comitatus Act would prevent the US from putting troops at the border to fight them.

                    That’s not what’s going on. No matter what Hannity tells you.

                    1. Follow the thread better. I will politely assume that it’s Reason’s awkward commenting system, rather than presume you don’t know what your talking about. Though it could be both.

                      Sarcastro asked a leading question, asking why the U.S. military isn’t at the Southern border keeping out illegal migrants, implying that it wasn’t an “invasion” of illegals. I replied the Posse Comitatus Act keeps the military from acting as law enforcement. If the Mexican Army invaded, said act wouldn’t prevent the military from responding.

                      Moreover, in a world without the segregationist Posse Comitatus Act, we can easily presume (like with other Western democracies and like the Coast Guard right now, which wears two hats, civilian and military) that the Army *would* be at the border helping to keep out illegals, at the very least in a Trump administration they would.

                    2. I know what Sarcastro said.

                      Stopping an invasion is not domestic law enforcement. It’s national defense.

                2. Because housing troops other places is more convenient for the specific need for troops. Your question doesn’t seem to be related to the subject.

                  If the DoD says a border wall is a national defense measure, do you really think SCOTUS will say “nah, courts choose what’s for defense and what’s not from now on, and while walls on borders for defense are older than history itself, we’ve decided this particular border wall isn’t for defense this time”?

              2. Mad Kalak, and Ben:

                The border wall is related to military defense in the same way that astrology is related to astronomy: They’re kinda sorta both about the stars, but one really has little to do with the other. As evidenced, as Sarcastro already pointed out, by the fact that there aren’t troops at the border.

                As far as originalism is concerned, living constitutionalism is more than just picking a policy preference and running with it, although policy preferences aren’t entirely irrelevant. You still have to find something in the text to hang your hat on, and the real difference between LC and originalism is that LC cares about how we, in 2020, understand words and not how the framers understood them. Both the framers, and LC, agree that cruel and unusual punishment is unconstitutional; the difference of opinion is as to what is, and is not, cruel and unusual. They were fine with public floggings; I’m not.

                But that aside, let’s run with your concept of LC, which is that whatever my policy preferences are should prevail. It’s pretty hard to accuse someone of hypocrisy if that’s the standard. If your standard is that the ends justify the means, then how on earth could you possibly be a hypocrite?

                That’s not true of originalism, in which there is only one logically consistent correct answer, whether it jives with anyone’s policy preference.

                1. I stopped reading right after your silly (and frequently overused by hacks) analogy about astrology/astronomy. Like walls don’t have anything to do with the the military and secure borders. HA! Ask the Chinese, or the Israelis, who use them extensively to prevent terrorism and, ahem, illegal border crossing.

                  I’ll check this part of the thread later to see if you try again with a better argument, as that one is not worth anyone’s time.

                  1. I accept your concession that you don’t have an actual argument to make in response.

                    1. Again, don’t waste my time, or yours.

                    2. If you had an actual argument to make in response, you’d have made it. I accept your concession.

                2. A wall is perhaps the clearest and most obvious defense mechanism in history. Even animals and insects build them for defense.

                  Will SCOTUS decide a wall is not related to defense? No. They won’t decide that.

                  1. SCOTUS won’t decide that because that specific question won’t be necessary to their decision.

                    The issue is not whether walls in general can serve a defensive purpose. They can and sometimes they do. The question is whether this specific wall contributes to defense. Congress looked at it and decided it doesn’t. Congress made a determination that there are other ways that do the job better. And the executive should not second guess them. If Trump wants to make legislative decisions, there’s any number of red states that will be glad to send him to the Senate.

                    Congress makes the laws. The president carries them out.

                    1. Congress did not put language in any bill (that passed and was signed into law) saying a border wall is not national defense. I dare you to find that language in any law.

                      For SCOTUS purposes, Congress speaks by enacting laws.

      2. This analogy doesn’t hold at all. If Congress had passed a law saying “The President shall hire some private contractors to build a big, beautiful wall on the southern border, and those contractors will be paid according to the following formula” then there would probably be a decent argument for the wall getting built and the contractors getting paid back. Obama didn’t just invent the risk corridors and then decide to allocate other money from HHS into them–Congress explicitly authorized their creation.

    3. It’s not that simple.

      There is a law passed by congress that explicitly allows the president to reallocate DOD funds under certain conditions.

      That said, the border wall likely doesn’t qualify under a strict reading of said statute.

      1. Does “strict reading” mean making up stuff?

        The 9th Circuit decided courts get to choose what’s necessary for defense and overrule the President. SCOTUS probably won’t decide that courts are taking over defense decision-making. SCOTUS might decide that congress has to be more specific with funding, but that would also be novel.

        1. “Does “strict reading” mean making up stuff?”


          And what the statute says is that the President can under war or national emergency situations divert other DOD funds to build facilities for military use.

          Unless the President plans to have the US Army paroling the wall as SOP, the border wall doesn’t qualify.

          1. My copy of the Constitution gives the President authority to decide military stuff. Not the courts.

            If the President and the DoD say it’s for military use, where does the judiciary get the authority to overrule that judgement?

          2. “And what the statute says is that the President can under war or national emergency situations divert other DOD funds to build facilities for military use.”

            Right, and another law says the President can unilaterally declare such emergencies. He did, so for legal purposes there’s an emergency.

            So the only remaining argument is that a border wall isn’t for “military purposes”. And as a classic example of a military purpose, from antiquity to today, that’s going to be a tough argument to make.

  3. “It’s interesting to think that if the Court constrains so-called nationwide or universal injunctions, a Biden Administration may be the primary beneficiary”

    Precedents are pesky things, although this presumes that conservatives would seek nationwide injunctions — we didn’t during the reign of B Hussain…

    The other side of precedent is that, should they manage to get elected, both Biden and Harris will likely be impeached by a GOP House in 2023 if not 2021. Biden’s dirty and it involves the ChiComs as well as the Russians/Ukrainians and Harris did some questionable things as CA AG. (Remember that VP Spiro Agnew was forced to resign for things he’d done as Governor of Maryland, that’s how we got Gerry Ford.)

    Precedents are pesky things…

    1. I don’t see Biden still being President by 2023; I expect he’ll be retired by way of the 25th amendment by then; After the half-way point of the term if the Democrats hold onto power in the midterms, (To preserve Harris’ qualification to have two terms as President.) or in a lame duck session if the mid term elections go badly.

      Assuming he lasts so long; He is pretty old.

      1. I’ve given up trying to predict the future. Brett’s scenario is plausible, but so is Biden serving out two full terms. Biden is six years younger than the current pope.

        1. I’m holding out for Mecha-Biden.

          1. More likely, Joe of Borg.

        2. Biden has had multiple brain bleeds — that’s not good, even without his apparent cognitive issues.

          1. Those ‘brain bleeds’ were not – that’s not what aneurisms are. And those incidents are a decent amount older than I am.

            Cognitive issues seem to have been exploded at this point – he’s been quite compos mentis enough to do both a debate and a town hall like the pro he is.

            1. Dementia has been exploded; He’s not THAT far along in losing it. But he’s certainly on that road.

              1. Questioning Biden’s mental abilities while supporting a complete fool like Donald Trump is insane.

                1. Not liking somebody isn’t the same as their being mentally deficient.

              2. Trying to distance diagnose stuff more subtle than full pudding-brain through the television is just an excuse for outcome-oriented reasoning.

      2. Probability of a 78 year-old male surviving four years is over 75%.

        1. Ecological fallacy.

          That said, Biden himself has said that if he’s elected, he’d only serve one term.

          1. “Ecological fallacy.”

            Can you explain how it is?

            1. You can’t take the characteristics of a group and apply it to the individual. That’s the ecological fallacy.

              So, as a group, there is roughly a 75% chance that a 78 year old lives to be 82, but you can’t infer from that group data that Biden has a 25% chance of dying before he reaches 82.

              Likewise for all demographic averages or traits, etc. Ya dig?

              1. Not a great example, but so what?

                However, it is true that Biden likely doesn’t have the life expectancy of an average 78-year-old. Since he seems to be in decent health, and undoubtedly has access to excellent health care, his life expectancy is likely to be higher than average.

              2. You can’t take the characteristics of a group and apply them to an individual, but we’re talking about probabilities here, not certainties. Joe Biden may or may not live to be 82, but that’s the way to bet.

                1. Now, if you told me the average German male is 5’9″ and the avg Mexican male is 5’7″, and asked me to bet me who is taller, Adelberg or Alvarez, I’d bet on Adelberg. But that still doesn’t mean, you can’ say that Biden has a 75% chance of living out his first term.

                  In the real world, specifically when we know Biden has had brain surgery and already shows clear signs of cognitive decline, and has said himself he won’t serve 2 terms if elected to the first, which indicates a public acceptance of own impending and increasingly likely mortality.

                  So, vote for Biden by all means if you don’t like Trump, but don’t vote for him thinking that actuarial tables say he’s gonna make it through his first term, or at least a 75% chance he will.

                  1. But those surgeries were 30 years ago. You’d have a much better case if they happened last month. That he has survived 30 years after brain surgery indicates it’s most likely no longer an issue.

                    Most likely. Again, we are playing with probabilities, not certainties. And not even the young and healthy among us have any guarantees about tomorrow.

                  2. And your medical degree is from where?

              3. Isn’t this what you’re doing? Your claim that Biden will likely be senile soon is based on…the fact that the age group he is in has X likelihood.

                1. I never said anything about Biden being senile based on anything. Quit putting words in my mouth. It’s unbecoming.

                  See my answer to Kyrchek above.

                  1. Don’t be pedantic about what exact word you used, we all now what we’re talking about here.

                    If the Lakers win 90% of their home games and they are playing tonight, is there not a 90% chance of them winning? Or let’s make even a simpler point, isn’t it more likely than not they are going to win?

                    Likewise, if Joe is a 77 year old man and most 77 year old men don’t have [insert term of your choice about whatever you’re arguing re Biden], then isn’t it more likely than not he doesn’t have that condition?

        2. Surviving, yes. Brett was referring to removal under 25A for menatal incapacity, not predicting that Biden would die.

          1. Matthew,

            As I read his comment, he was referring to both.

        3. Bernard11 — not when you factor in his medical history.

          1. Show me the actuarial tables or GTFO.
            Seems like you’re bullshitting again.

          2. Are you suggesting his medical history and overall health is worse than that of the average 78-year-old male in the US?

        4. Most 78 year old males are leading low stress retirements, not occupying an office which famously ages people.

          1. So that’s why Trump has descended (further) into madness?

            All the more reason not to re-elect him. Biden is 3 1/2 years older, true, but Trump has been through four years of that aging. Of course, maybe that only applies to Presidents who do their jobs, not those who just sit on their ass watching Fox News and then go play golf.

            1. Its cute that you think Biden is going to work hard.

            2. Again, being disliked by left-wingers is not the same thing as madness, even if the left does have a history of checking its political foes into mental institutions.

              When I say that I’d expect Biden to be removed via the 25th amendment, I don’t mean by that he’ll actually become incompetent to do the job, though that plausibly could happen to Biden or Trump in the next few years.

              I meant that it would be pretextual. That they are contemplating a bait and switch. Notice that Pelosi has been talking about legislation reassigning the 25th amendment power to declare the President incompetent away from the President’s cabinet, to some unspecified body selected by Congress? With the process initiated by Congress, not the VP or the President’s cabinet. IOW, initiating it would be a political move.

              It’s not aimed at Trump, it’s aimed at Biden.

      3. “He is pretty old.”

        Indeed, a whopping 2 1/2 years older than Trump.

        1. Two years makes a bid difference in your seventies, as you hopefully will be lucky enough to discover. In your 30-60s, not so much. That said, Trump didn’t have two aneurysms, one of which required them to root around in his head to fix.

          1. “Two years makes a bid difference in your seventies”

            I think you want to say ‘can’ make a big difference. Also, by this logic you should have been really concerned about Trump’s mental state when he was running against Hillary as two years separates them. No, this is of course an obvious ploy to try to head off the obvious charge that Trump says and does so many dumb things that maybe he’s a bit off.

            “Trump didn’t have two aneurysms, one of which required them to root around in his head to fix.”

            Well, we can’t be sure about Trump’s health issues since there’s little transparency there. Kind of like his finances.

            1. Not can, *does*. Don’t argue with basic biology here.

              Trump is not the stable genius he says he is, you won’t get an argument from me on that. And don’t try to distract with Hillary, I voted against her, not FOR Trump, because she is an evil, cackling witch. A real Lady Macbeth.

              As for the aneurysms that Biden has had, I don’t care who you are, it takes a toll. Trump has had nothing similar. You’re being silly here.

              1. “Not can, *does*.”
                That’s silly, there are lots of quite competent 77 year olds and quite senile 75 year olds.

                “it takes a toll”

                Again, it *can* take a toll.

                “Trump has had nothing similar.”

                Again, we’ve no reason to assume we know what Trump has or has not had. He’s opaque about so much, including his health.

                1. Not can, *does*. But do go on arguing against basic biology. As you age, and the older you get, the complex multi-causal process known as aging means that two years makes a bigger difference at 75 than 65, or 45 or 25, etc. etc.

                  Trump is not really opaque about his health. That’s your opinion and a bad analogy comparing it to his taxes. I’m fairly sure, that in the celebrity life of Trump, had he a bi-pass operation or worse, brain surgery, we’d have heard about it. I suspect given his age and weight, he has to use Viagra though. *snicker*

                  1. Trump is not really opaque about his health.

                    Oh really? What was that surprise visit to Walter Reed about, then?

                    1. “I don’t believe the public explanations” is not the same thing as “opaque”.

                    2. Implausible public explanations, favorable to Trump, who can be relied on to lie about everything.

                    3. ‘He won’t tell the truth’ = opaque (to be charitable)

                  2. “But do go on arguing against basic biology.”

                    Basic biology demonstrates that the large majority of 77 year olds are not senile.

                    “Trump is not really opaque about his health. ”

                    Of course, he has that doctor’s report that he’s the healthiest person ever, right?

                    1. You’re resorting to pounding the table at this point.

                      I never said that a large majority of 77 year olds are senile or not. Most actually aren’t. Quit putting words in my mouth. I’m saying, and medical and biological science backs me up on this, that 2 years when your in your 70s makes a big difference when we are speaking about age related health declines than when you’re NOT in your 70s.

                      In another example, seen an athlete clock over just 2-3 years in their late 30s and have to retire. At the heights of competition, at the top of pyramid, age related decline of just 2-3 years makes a difference. Likewise just being healthy, there is a bigger difference between 75 and 77 than 45 and 47. How big depends on underlying health, but it is a big difference regardless.

                    2. “medical and biological science backs me up on this, that 2 years when your in your 70s makes a big difference ”

                      How does medical and biological science make this determination? Isn’t it from things like the same data that make up actuarial tables?

                    3. ““medical and biological science backs me up on this, that 2 years when your in your 70s makes a big difference ””

                      Again, so there was a big difference sized more chance that the person you voted for in 2016 was going to have whatever condition you’re arguing about?

                      Also, all this talk of medical and biological science, can you cite any peer reviewed study results about the prevalence of this condition in 77 year olds vs. 75 olds?

              2. And you’re going to vote against Biden not for Trump, and you’ll be voting for Trump every time due to your negative party affiliation. Mox Nix.

                As for the aneurysms that Biden has had, I don’t care who you are, it takes a toll
                It was 42 years ago.

                1. Yea, and when you add age up with pre-existing maladies, the result it not good. It happens to us all. For example, my father was NOT the same after being on a heart/lung machine. He was, sadly, not as sharp. This mattered but a little, until he got very old, then it was very difficult not to notice. Biden has less to start with than my father did.

                  Biden has always, even when he was VP, a whacky way of speaking a no filter. This was no doubt influenced in some part by his brain surgery. Throw in the age related decline that happens to everyone, and you have the Biden you know before you, that says 200 million people died of COVID. (For an amusing example of this, imagine a G.W. Bush speech without a teleprompter, when he’s 78 after he’s had brain surgery).

                  1. “a whacky way of speaking a no filter.”

                    Have you heard of this fellow that’s currently President? No doubt his higher proclivity in what you speak of is due to some secret brain surgery according to kalak logic.

                    1. Okay, that’s a fair enough point. Trump often exits a paragraph a different way than he went in. But please, don’t deny that “that’s just Joe” has been said by the Left for decades about his utterances and mannerisms.

                    2. *hasn’t been said.


                    3. “Trump often exits a paragraph a different way than he went in. ”

                      Paragraphs? He’s lucky to utter a complete sentence.

                      George Will joked the other day that he’s going to be the first President ever to fail to utter a sentence with a subject and a predicate. That’s obviously a joke but there’s a big kernel of truth there.

                    4. Yeah, I’m not fond of Trump’s manner of speaking. I like to have fully formulated a thought before I commit it to words, and while I may occasionally screw up, (More often since the chemo!) I aim to be grammatical, too. I try to speak in text, essentially.

                      Trump launches into speaking before his thoughts are fully formulated, then starts qualifying what he has said, often in mid-sentence. Eventually he arrives at what he meant, but it can take a paragraph or two to do it, and speaking this way makes him VERY vulnerable to uncharitable interpretations or out of context quotes.

                      To use an analogy, I speak in closed form expressions, Trump speaks in Taylor series. I find that really grating whenever I encounter it, and Trump is not the first example I’ve seen. (The first in politics, though.)

                      But it doesn’t mean he’s an idiot. It just means he expresses himself differently. He still gets there in the end.

          2. None of us are actuaries, so this is an odd thing to speculate about.

            And the aneurisms occurred in 1988; do you have any evidence something so remote implies anything at this point?

            1. I suppose you didn’t see it in the lefty-verse you inhabit. Still, the surgeon who did the work says he’s fine (of course he would, would he criticize his own work!?) but other medical authorities are not so sanguine.

              I’m not saying he not “fine” because of the surgery, what I’m saying that, all other things the same, he’s not better off than a person who *didn’t* have docs take the top of his skull off and root around in his grey matter.

              1. I don’t think this is a partisan thing; it’s actuarial tables. It seems to me that the all other things being equal exercise isn’t useful – if any difference is going to be swamped by other stuff, it’s negligible.

                1. Ecological fallacy.

                  1. I think the ecological fallacy has to do with making comments about one unit of analysis based on information about another. In this case people are speculating about the mental health of a 77 year old individual using the information of the prevalence of mental problems in surveys of individuals that age.

                  2. You are making an assumption about an individual based on statistics, m_k so maybe don’t be so free with your ecological fallacy.

          3. “That said, Trump didn’t have two aneurysms, ”

            For all we know he had three. You figure he lied about the Walter Reed trip a few years ago because it was good news?

            1. No, we figure you’re lying about him lying. Though you may primarily be lying to yourself.

              1. Brett, you don’t make a sudden, unscheduled, visit to a hospital to get a start on your annual physical. Nobody does. Do you?

                When I get a physical, I go to my doctor’s office, which is amply equipped for the job. I rather suspect the White House medical facilities are more elaborate and better equipped than that office.

                The explanation was bullshit, and if you weren’t delusional about Trump you’d admit it.

                1. Bernard, I don’t have a job that keeps me busy 12 hours a day, with unexpected crisis appearing out of nowhere on a frequent basis. So I’m able to schedule medical appointments months in advance, and do.

                  I expect that making a predictable hole in a President’s schedule months in advance is fairly difficult, and that Presidents have a MUCH easier time getting appointments on short to no advance notice.

                  It is quite possible that it was an emergency visit, I’ll give you that much. I just wouldn’t assume that it was.

              2. Brett Bellmore: ‘I didn’t believe Obama about that birth certificate, but who am I to question Trump when he says he made an unscheduled, emergency trip to Walter Reed solely to get a totally normal head start on his completely unremarkable annual physical.’

                1. Actually, as you well know, I did believe Obama about the birth certificate, (While it was possible his birth in Hawaii was faked, it was never remotely likely.) and just thought that the idiot birthers were entitled to a hearing on the merits, which I fully expected them to lose.

    2. Democrats will never allow a special counsel like the Bush loyalists orchestrated against Trump…and impeach away, nobody will be removed after Republicans failed to take their oath seriously and remove Trump.

      1. Wait. Was it “orchestrated by Bush loyalists” or was it “Republicans failed to take their oath seriously”?

        1. Bush loyalists lost interest in the Russia collusion investigation once Trump outsourced judicial appointments to McConnell and McGahn. So the reason Kavanaugh is a justice is because W Bush called Collins and urged her to support him.

    3. Do you think Biden would let China invade Taiwan and take it over? It would be a shame for them to release documents that incriminate Hunter.

      1. Well, four years of Jimmy Carter letting the Soviets do that led to 12 years of Reagan and the demise of the Soviet Union.

        The ChiComs are dealing with the same sort of structural internal problems that the Soviets were in the 1970’s. I think that invading Taiwan would be like the Soviets invading Afghanistan.

        1. If China wanted to make your son a billionaire wouldn’t you let them?? So Hunter took Air Force Two to China but after they gave him a billion dollars he bought a Gulfstream G5 and flew back on that. Hunter is actually worth more than Trump.

        2. The Soviets invaded Taiwan? I missed it.

          1. Would you support the Soviets or Taiwan if that happened?

    4. “this presumes that conservatives would seek nationwide injunctions — we didn’t during the reign of B Hussain…”

      That’s of course false. There was the Texas judge who enjoined parts of the ACA, DACA and the transgender regulations under Obama, just for starters.


        According to the Wikipedia page, there were as many national injunctions against Trump in the first year of his administration as in the entirety of the Obama administration, so while Dr. Ed 2’s initial statement is obviously ridiculous there is a difference.

        Personally, I think this mostly has to do with the fact that the Trump administration is very bad at actually implementing its policy preferences, but I’m sure the people on the other team see it as some sort of conservative virtuousness or bias of the courts. (There were only 12 national injunctions against the W administration, so pure partisan explanations of the dynamic are almost certainly wrong.)

        1. 12 against Bush, 20 against Obama, 55 in half the time against Trump.

          Less than double increase to nearly 3 times. Nope, nothing partisan about it.

          Now that the dam has broken, GOP states and organizations are going to file in friendly circuits and it takes 4 vote for cert grants and only 3 democrats.

          1. “Less than double increase to nearly 3 times. Nope, nothing partisan about it.”

            This makes no sense. Why should there be some natural rate of increase in the number of nationwide injunctions? (i.e., why should we assume that it’s normal for there to be more nationwide injunctions against Obama v. Bush?) And if there is, how do we know that it’s not naturally exponential versus linear?

            The fact that there’s not a strong correlation between the number of injunctions and the party of the President is probably a clue that something else is going on vs. partisan bias. Back in 2016, national injunctions were viewed as a conservative tool versus the Obama and potential Clinton administrations:


            1. “Why should there be some natural rate of increase in the number of nationwide injunctions?”

              The moving Overton window. Nationwide injunctions were VERY strongly disfavored, prior to the 2nd Bush administration, but every time one was granted, the barrier to getting another was eroded.

              None the less, the numbers positively exploded when Trump took office. It’s not Republican vs Democrat. It’s Trump vs Uniparty.

              1. If the issue is moving the Overton window, this really happened during the Obama administration, since the numbers in the Reagan, Bush Sr. and Clinton administrations were all pretty consistent at 1.5 / year, and then ticked up 60% during the Obama years.

                While Trump does inspire strong reactions on both side of the political aisle, if you look at the substance of most of the decisions many of them boil down to “the administration didn’t bother to follow basic rules of procedure”, which is why I tend to think the problem is that the Trump administration is incompetent more than that there’s particular bias against him. (Not a national injunction, but just look at the recent decision from Judge Nichols–who Trump himself appointed–re: the TikTok case where he concludes that the administration hasn’t met the basic burden of proof showing that banning TikTok is necessary to achieve his national security objectives.)

                1. The rate of national injunctions increased 66% with the Obama administration, compared to Bush.

                  It increased 450% with the Trump administration, compared to Obama. I’d call that a more profound jump.

                  “if you look at the substance of most of the decisions many of them boil down to “the administration didn’t bother to follow basic rules of procedure””

                  Well, what do you expect? You’re not going to get a national injunction unless the judge rules against the administration, and they have to do so on SOME basis.

                  The question here isn’t the chosen basis. It’s whether they do so only with respect to the the parties at hand, or their own circuit, or they go nation-wide, potentially over-ruling other co-equal circuits that ruled against an injunction.

                  That’s the real problem with national injunctions, and why they’re disfavored: They constitute over-reach on the part of the judge granting them.

                  1. Yes, it’s a more profound jump under the Trump administration, but your previous claim was that the Overton window had shifted which is what allowed nationwide injunctions to become so widespread under the Trump administration. If that theory is true, the shift in the Overton window happened during the Obama administration, and now Trump is suffering the consequences of a Republican strategy.

                    I don’t have a strong opinion on the topic of nationwide injunctions. Maybe they shouldn’t be allowed, or only under a better defined set of circumstances. But given that so far the Supreme Court hasn’t really constrained them, I find it unsurprising that the same administration that can’t bother to go through the effort of actually getting Senate confirmation for its Secretary of DHS or countless other key roles also has a hard time rolling out their regulatory changes.

  4. So….what happens if SCOTUS finds that the diversion of monies to build the border wall were in fact unconstitutional? What is the remedy here?

    Do they tear down the wall built?
    Impeach POTUS Trump again?

    I mean, what happens post-decision?

    1. Wall-building will end in a few months, without regard to this litigation. At least some wall-removing is likely to commence early next year.

      More important, Republicans (other than Trump and his fans) have already moved on, toward a new type of wall-building. Ted “Often Libertarian” Cruz has announced he has a plan, with details to be unveiled this week, to build a wall around the Supreme Court, preventing enlargement of that Court.

      How Sen. Cruz would propose to prevent a Democratic House, Democratic Senate, and Democratic President from enacting the relatively simple legislation required to adjust the Court’s size early next year seems a puzzler. Perhaps he is expecting sweet newborn eight-pound, six-pound baby Jesus to personally deliver a miracle to Republican Party headquarters?

      1. “At least some wall-removing is likely to commence early next year.”

        Why remove the walls if the gates are open?

        1. Yeah, that would be spiteful and unnecessary. Unless the walls are badly built and a hazard.

          1. The new walls are not badly built. That I am confident of.

            1. I’m not. But so what? Either way, time will tell.

            2. Are you as confident about that wall’s quality as you are about the quality and value of your Trump University diploma, a Trump Steaks selection, that Trump Shuttle ticket, a GoTrump travel itinerary, your Trump Mortgage, the Trump Network programming, those New Jersey Generals season tickets, any Trump casino chip, your Trump Magazine subscription, or any of the other bankruptcy-bound Trump “quality” products?

          2. ” Yeah, that would be spiteful and unnecessary. ”

            Or it might be a useful lesson and worthwhile signal.

      2. Nah, they won’t tear down the walls, bad optics. They’ll just stop repairing them, and ignore people going over them.

  5. OT but I hope Orin weighs in on Lange v. California.

    “Whether the pursuit of a person whom a police officer has probable cause to believe has committed a misdemeanor categorically qualifies as an exigent circumstance sufficient to allow the officer to enter a home without a warrant.”

    1. Layman question. Why is it not the obvious answer that an officer could enter the house in pursuit of the suspect, but could not then act on any unrelated evidence?

      1. There’s a separate doctrine about not excluding any evidence in plain sight even if unrelated to the warrant/exigency.

        Drug war did all sorts of twisty things to the Fourth Amendment.

        1. Lange worries me because while I’m confident that they will so “no” and hold that misdemeanors do not categorically create exigencies, I am much less confident that they won’t say a bunch of things that will give police reasons to burst in for misdemeanor “exigencies” anyway.

        2. Assuming your second sentence is supposed to causally connected to your first, I’d be interested in hearing you develop this argument. The key plain view Supreme Court cases I can think of are not drug-related.

          1. I may have the exact history wrong, but the case I read in law school was about finding ‘drug paraphernalia.’ That and the timeline of the development made me think drug war.

            1. I’d say the primary articulation by the Supreme Court is in Horton v. California, 496 U.S. 128 (1990), which involved the discovery of weapons during a search for property stolen in a robbery. It certainly comes up in drug cases with some frequency, but it’s hard for me to see that it’s driven by the war on drugs, much less distortd by it.

      2. So there is the “hot pursuit” exception, which permits the officers to follow the suspect they are chasing into a place they would otherwise need a warrant for. But if there is a categorical rule that misdemeanors create exigencies would mean it wouldn’t matter if the officer was in hot pursuit if they had PC of a misdemeanor and that the defendant was about to destroy evidence about that.

        1. I think you’re misunderstanding the issues presented here.

          The fourth amendment allows police officers to make warrantless arrests if they have probable cause to believe someone has committed a crime. However, they usually cannot enter the person’s home to make that arrest without a warrant. The “hot pursuit” exception allows them to enter a house to make a warrantless arrest of a person if they have probable cause to believe they committed felony (and they’re in “hot pursuit” of that person). The question in this case is whether the “hot pursuit” doctrine can apply if the police are in hot pursuit of someone who committed any misdemeanor, or if there needs to be something unusually serious misdemeanor in question.

          1. You’re right. My Fourth Amendment knowledge is a bit rusty and I guess I glanced past the word “pursuit” in the question presented too easily. Thanks for clarifying it.

      3. Presumably that’s the defendant’s position—under normal fourth amendment jurisprudence, the illegal entry and arrest wouldn’t invalidate a prosecution for the underlying misdemeanor, just suppression of any evidence discovered as a result of the illegality. (In this case, the officer discovered that the defendant had been driving drunk after entering, and he was trying to have that evidence suppressed.) So that’s certainly one possibility, although I have trouble seeing why it’s obvious (indeed, it seems obviously wrong to me.)

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