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Reviewing border wall prototypes near San Diego in March 2018

The Supreme Court’s Short But Incredibly Confusing Ruling Clearing The Way For Trump To Grab Money And Start Building His Wall

*Or: Why is it the Sierra Club that’s suing about this?

We preface this as always when we write about legal issues that none of us are lawyers.

But this seems to be one of those cases that really defies common sense.

The Supreme Court’s ruling itself in Trump v. Sierra Club, which came very late last week, is a concise one paragraph (lengthened to three pages by an explanation by Justice Breyer explaining how he would’ve handled it differently). It was decided by a margin of 5–4 (usual suspects), without any Justice taking credit for the opinion (which is not usual for this kind of action). The most crucial bit is this:

“[T]he Government has made a sufficient showing at this stage that the plaintiffs have no cause of action.”

That lifts injunctions placed by lower courts preventing Trump from taking $2.5-billion from the U.S. military to build his wall, after he declared he has to because it’s a “National Emergency”, even though Congress doesn’t agree and refused to fund it. Now he can go ahead and start building.

So why and what are we finding so perplexing?

  1. Why isn’t it Congress suing, if the President’s ignoring them and using money in ways they expressly forbid?
  2. Why is the Sierra Club suing the President, when we all know this isn’t primarily about environmental issues?

So we looked into it. And tried to piece it together so that we might better understand. So let’s walk through what we think we found:

One thing the Constitution makes abundantly clear is Congress decides how much money the country raises and spends, and on what. It’s commonly referred to as the “power of the purse”. It’s in Article I of the Constitution, which says:

All bills for raising revenue shall originate in the House of Representatives.”

And…

No money shall be drawn from the treasury, but in consequence of appropriations made by law.”

In other words: the Constitution explicitly and exclusively gives Congress the right to raise and spend money; like for building a wall, or not. Also the Constitution makes the Legislative branch (Congress) equal to the Executive branch (President), not subservient to it.

As the nation’s Chief Executive, The President has a lot of leeway on how he executes Congress’ wishes. But if Congress expressly says he can’t spend money on something (as they did in this case), he shouldn’t be able to. And if he does anyhow, Congress should be able to sue to block him. (Especially since a big selling point of all these new Conservative judges Trump’s been putting on federal courts, including the Supreme Court, is that they interpret the Constitution “as written”.) And really, there’s nothing in the Constitution that’s any clearer. Simple, right?

No!

Back in June, a federal District Court judge in Washington, D.C. rules Congress does not have the right to sue to stop Trump from moving money they’d allocated to the U.S. military, to building his wall. Judge Trevor McFadden puts it quaintly:

Congress has several political arrows in its quiver to counter perceived threats to its sphere of power….

And according to the judge, a lawsuit isn’t one of them. Therefore he finds Congress does not have “standing” to bring the suit. “Standing” refers to the fact that you can’t sue somebody unless you can prove that what they’re doing is causing you harm.

Judge McFadden suggests if Congress wants to do something about it they could pass a law “to expressly restrict the transfer or spending of funds for a border wall”. He argues it’s not the Judicial branch of government’s place to get dragged into disputes between the two other branches of government: the Executive and Legislative.

But c’mon! How different is passing a law blocking the President from building his wall than what Congress actually did when they refused to grant wall funding in a move that led to Trump to throw a tantrum and shut down the government for 35 days (the longest ever), and then agree to reopen it without getting his wall money?

Splitting hairs, right?

Guess not.

Also never mind the fact that it overturns precedent. Because back when Republicans wanted to sue President Obama over funding Obamacare, a federal judge in Washington (not the same one because the one issuing the most recent ruling wasn’t around then because he was appointed by Trump), said it was not only appropriate, but essential to preserve Democracy that they be allowed to proceed against the President. Judge Rosemary Collyer , referring to Congress’ “power of the purse” writing at the time:

This constitutional structure would collapse, and the role of the House would be meaningless, if the Executive could circumvent the appropriations process and spend funds however it pleases.”

But apparently that isn’t true anymore.

When Judge McFadden (who is only 41, so will likely be on the bench for a long time), issued that ruling back in June, it didn’t get a heck of a lot of attention, because as the New York Times wrote at the time:

The ruling will not have any immediate practical consequences because other groups have already secured an order blocking Mr. Trump from proceeding.”

(That now seems a little big shortsighted, unless by “immediate” they really meant that day and not like a brief month later…)

And the judge also suggested one course of action Congress could take would be to file briefs in support of lawsuits brought by by someone else.

Here’s where the Sierra Club steps in. Since Congress finds itself without standing, the environmental rights group (with a supporting brief from the House of Representatives), suddenly becomes the best hope for stopping Trump. But of course they can’t sue on behalf of Congress simply to stop Trump misusing taxpayer money. So instead they have to sue on the basis of environmental impact. Which may very well be a valid reason, but it’s also ludicrous because it’s not central to what this is really about at all.

And that gives the Trump Administration leeway to make the even more ludicrous argument that:

[I]nterests 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.”

As if it’s really about that either. (So all of a sudden it’s all about drugs and the environment? Nothing about immigrants?!)

Two federal courts agree with the Sierra Club, or at least agree enough that they temporarily block Trump from taking the funds away from the U.S. military and building his wall.

Judge Haywood Gilliam, a District Court Judge in the Northern District of California, does not seem confused about what the case is really about at all, writing:

The case is not about whether the challenged border barrier construction plan is wise or unwise. It is not about whether the plan is the right or wrong policy response to existing conditions at the southern border of the United States….Instead, this case presents strict legal questions regarding whether the proposed plan for funding border barrier construction exceeds the executive branch’s lawful authority.”

Nor did the opinion of a 3-judge panel in the 9th Circuit, which refuses to vacate Judge Gilliam’s injunction (although it was a split decision):

“[The public interest is] 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.”

But the Supreme Court does not agree. As we noted at the top, mainly on the basis that the Sierra Club might not have “standing” to sue in the first place either.

While this isn’t a final decision, and the Court could ultimately rule either way, it’s still significant. That’s because the Supreme Court tends to support or reject injunctions based on what it believes will be the most likely ultimate outcome of the case. In other words, if they didn’t think they most likely will decide to allow Trump to take the money and build his wall, they wouldn’t let him take the money and build his wall right now.

Written by

Peabody award winning journalist. Streaming media pioneer. Played @ CBGB back in the day. Editor-In-Chief "The Chaos Report" www.thechaosreport.com

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