Supreme Court Reporter
Washington Post
Robert Barnes reports for the Washington Post:
The Supreme Court Friday night on a 5 to 4 vote revived the Trump administration’s plan to use $2.5 billion in Pentagon funds to build part of the wall project along the southern border.
The court’s conservatives set aside a U.S. Court of Appeals for the 9th Circuit ruling for the Sierra Club and a coalition of border communities that said a reallocation of the Defense Department money would violate federal law.
The unsigned ruling by the Supreme Court said the government “made a sufficient showing at this stage” the groups did not have proper standing to challenge transfer of money.
In a 2-to-1 decision earlier this month, the 9th Circuit majority noted that a stalemate between Congress and President Trump over the issue prompted the longest government shutdown in history. The judges reasoned that Congress made its intentions clear by allocating only about $1.4 billion for enhanced border protection.
The lower court said the public interest was “best served by respecting the Constitution’s assignment of the power of the purse to Congress, and by deferring to Congress’s understanding of the public interest as reflected in its repeated denial of more funding for border barrier construction.
After Congress’s decision earlier this year, Trump announced plans to use more than $6 billion allocated for other purposes to fund the wall, which was the signature promise of his presidential campaign
Environmentalists and the Southern Border Communities Coalition immediately filed suit to block the transfer of funds. Democrats in the House of Representatives filed a brief supporting them.
U.S. Solicitor General Noel Francisco told the Supreme Court that the 9th Circuit ruling was wrong. “The sole basis for the injunction — that the Acting Secretary exceeded his statutory authority in transferring the funds — rests on a misreading of the statutory text,” Francisco wrote. He was referring to Patrick M. Shanahan, who was acting secretary at the time.
Francisco said that the challengers did not have proper legal standing to challenge the transfer of funds. He added that even if they did, their “interests in hiking, birdwatching, and fishing in designated drug-smuggling corridors do not outweigh the harm to the public from halting the government’s efforts to construct barriers to stanch the flow of illegal narcotics across the southern border.”
The money was transferred from DOD personnel funds in response to a request from the Department of Homeland Security. Federal law allows such transfers for “unforeseen” reasons and for expenditures not previously “denied by the Congress.”
The administration contends that Congress did not reject the specific expenditures at issue, which would fund projects in California, New Mexico and Arizona.
The challengers said Congress was clear.
“Congress recently considered, and rejected, the same argument defendants [the government] make here: that a border wall is urgently needed to combat drugs,” said the brief from lawyers at the American Civil Liberties Union, which represented the groups.
“If defendants were nonetheless permitted to obligate taxpayer funds and commence construction, the status quo would be radically and irrevocably altered.”
The brief from the U.S. House of Representatives agreed.
“The administration refuses to accept this limitation on its authority, as clearly demonstrated by Acting White House Chief of Staff Mick Mulvaney’s statement that President Trump’s border wall ‘is going to get built with or without Congress,’ ” House General Counsel Douglas N. Letter wrote. “Under our constitutional scheme, an immense wall along our border simply cannot be constructed without funds appropriated by Congress for that purpose.”
And Letter said that the administration’s view of who is within the “zone of interest” to have standing to sue is “in reality, an argument that no one can challenge the conduct at issue here.”
Francisco moved quickly after the 9th Circuit’s July 3 ruling to ask the Supreme Court to dissolve the lower court’s injunction. It asked the justices to rule before July 26, so the Defense Department would have time to finalize construction contracts before the end of the fiscal year on Sept. 30.
Otherwise, he said, “the remaining unobligated funds will become unavailable.”
The challengers said the money already was unavailable.
The brief filed by the House said the money would not be lost, but would simply go back into the treasury, where the administration would again be free to make its request to Congress.
It noted there was no rush. “The administration has apparently completed only 1.7 of the 95 miles of border fencing Congress approved and appropriated funds for in fiscal year 2018,” it said.
The case is Trump v. Sierra Club, et al.
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For those outside the legal community, “lack of standing” is often a legalistic ruse used by spineless judges who want to reach a particular result without explaining any real rationale on the actual merits of the case.
I just read another article by Andrew Sullivan about how our system is failing to hold Trump accountable for his lawless actions. http://nymag.com/intelligencer/2019/07/andrew-sullivan-the-american-system-is-already-failing.html.
I don’t agree with everything Sullivan says. In particular, his criticism of Democrats seems over the top. While the party has its failings, they only control 1/6 of the Government. Trying to leverage that into a strategy that preserves the American Republic by defeating Trump in 2020 is an essential endeavor, not an exercise in tilting at windmills.
But, Sullivan’s “bottom line” might be disturbingly “on point:”
The awful truth is that the American constitutional system is failing on almost every level. The system, it turns out, is not even strong enough to withstand one Trump term, let alone two. Trump intuited this in 2016, and if he wins reelection, as he now has a good chance of doing, what’s left of liberal democracy will be under acute duress.
The “extinction-level event” that I feared in the spring of 2016 is already here. Look around you. And it wasn’t even a fight.
The Supremes’ majority’s failure to call out Trump both for his contempt for Constitutional separation of powers and his constant use of the S
upremes themselves to “short circuit” the lower Federal Courts in an unprecedented manner contributes mightily to the demise of the rule of law.
Chief Justice Roberts might self-righteously and self-servingly proclaim that there are no “Democratic Judges” or “Republican Judges.” But, actions speak louder than words, Chiefie!
The pathetic performance of Roberts and his fellow GOP appointees in this case gives lie to his claim. And Trump, for all his failings, sees and is willing to use the sad truth that Roberts denies in a never ending attack on our country and our supposedly governing principles.
It started with the “conservative” Justices’ outrageous abdication of duty in the “Travel Ban Case.” Rather than standing up to a President who spewed obvious lies, racism, and anti-Muslim venom in support of a political agenda that clearly violated Constitutional norms, the majority signaled that as long as Trump gave them “cover” by asserting clearly contrived and fabricated “national security” grounds, they would give him a free hand to destroy the nation. These “cowardly false conservatives” now find themselves presiding over the demise of our legal system.
And, while they might feel that they are above paying attention to the human carnage caused by the their intransigence and dereliction of duty, that misbegotten “Travel Ban” majority opinion has caused, and continues to cause, trauma and probably death to innocent refugees caught up in Trump’s unconstitutional racist onslaught.
Trump has a history of turning against those who have served him, but outlive their usefulness. Who will the “GOP Gang of Five Justices” look to for protection when the screw turns again and they become the “aliens,” stripped of their rights and humanity in Trump’s (Not So) “Brave New World?”
Those who fail to stand up to tyranny and protect the rights of others might find themselves unprotected in their hour of need!
PWS
07-27-19