In Border-Wall Dispute, Divided Court Bows to Trump

      The Supreme Court's newest justices, Neil Gorsuch and Brett Kavanaugh, both presented themselves to the Senate and to the American public as committed originalists and textualists, always true to the text and original meaning of the U.S. Constitution. But they showed those professed views to be mere pretense on Friday [July 26] in a behind-the-scenes separation of powers dispute between Congress and President Trump.
      Gorsuch and Kavanaugh voted along with their three Republican-appointed colleagues to allow the Trump administration to violate the text and spirit of the Constitution by diverting money Congress appropriated for the U.S. military to the building of President Trump's wall along the U.S.-Mexico border. The Court's 5-4 decision came on what the administration called an emergency request to lift an injunction issued and upheld by two lower federal courts and openly flouts Congress's constitutional control over federal spending.
      In their new book on the Kavanaugh confirmation, conservative journalist Mollie Hemingway and conservative activist Carrie Severino describe Kavanaugh's record on the D.C. Circuit appeals court as always faithful to "the text and original meaning of the Constitution." In fact, Kavanaugh's 300 opinions on the D.C. Circuit dealt mostly with the stuff of statutory interpretation and administrative rulemaking, not constitutional law.
      The dispute before the Court last week, however, was a pure question of constitutional law on provisions covered in the first week of Con Law I: Separation of Powers. Trump was claiming the authority to spend military appropriations on the non-military purpose of constructing the wall along the United States' southern border.
      The Constitution clearly gives Congress the power of the purse. "No money shall be drawn from the Treasury but in consequence of Appropriations made by law," according to Article I, section 9, clause 8. The president has no free-wheeling power to spend money unless Congress appropriates the money for the purpose at issue.
      This elementary separation-of-powers issue reached the Court in a case brought by the Sierra Club and a coalition of southern California communities. They sued Trump in federal district court in San Francisco, contending that the administration had no authority to redirect DOD funds to the border wall project.
      For legal standing, these plaintiffs claimed the border wall would harm the environment and interfere with their recreational interests. They argued that these claimed harms would satisfy the so-called "zone of interests" test often required to establish legal standing. But they also argued that a long line of precedents granted plaintiffs to challenge allegedly unauthorized governmental action without any need to satisfy that test.
      Those arguments satisfied Judge Haywood Gilliam, the Obama appointee designated to hear the Sierra Club case. He issued a permanent injunction prohibiting the transfer of funds on June 28; a few days later, a three-judge Ninth Circuit appellate panel rejected the government's request to stay Gilliam's injunction. The government headed straight to the Supreme Court, with its five-justice majority of Republican appointees, including the two named by Trump.
      The administration claimed authority to "reprogram" DOD funds to the border wall project under a section of the Defense Department appropriations act: specifically, section 8005 in the act. That section allows transfer of funds for "unforeseen" needs as long as the funds had not been "denied" by Congress. Solicitor General Noel Francisco argued implausibly in a written brief that the need for border wall funds was unforeseen and the funds for the wall had never been "denied" though vigorously debated in Congress and cut in half from the administration's request.
      Francisco went on to argue that the plaintiffs had no legal standing to enforce the limits on the president's discretion in reprogramming funds. But the administration had argued, in a separate case in federal district court in the District of Columbia, that the House of Representatives itself had no legal standing either. A Trump-appointed judge, Trevor McFadden, dismissed that suit in May on that ground.
      The Court's decision came in an unsigned, one-paragraph order issued late Friday afternoon granting the requested stay pending the government's appeal before the Ninth Circuit and later appeal to the Supreme Court itself. One of the "reasons" — no others were listed — was the government's "sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary's compliance with section 8005." A weak reed, indeed, on an arguably inapplicable technicality.
      The four liberal justices voted to deny the stay. In an opinion, Justice Stephen G. Breyer said the administration had failed to show "irreparable harm," as ordinarily required to stay a lower court decision and short-circuit the appellate process. As a compromise, Breyer would have allowed the government to let contracts but not to begin actual construction.
      Trump issued a gloating tweet within the hour: "Wow! Big VICTORY on the wall!" From the opposite end of Pennsylvania Avenue, House Speaker Nancy Pelosi said the Court's ruling "undermines both the Constitution and the law." From all that appears, Gorsuch and Kavanaugh are working from a different version.
      So too, Trump himself, as seen in his explanation of presidential powers to a group of young conservatives last week [July 25]. "Then I have an Article 2," he told the young people wrongly, "where I can do whatever I want as president." The Supreme Court, sadly, missed a good opportunity to correct the president's misstatement, but apparently this Court will pretty much let this president do whatever he wants.