Fifth Circuit Overturns Injunction Against Using Pentagon Funds for Border Wall
[guest post by JVW]
National Review Online has the details:
On Wednesday, a federal appellate court lifted an injunction by a lower court which had prevented $3.6 billion in military funds from being used for the construction of a barrier on the U.S.-Mexico border.
The 5th U.S. Circuit Court of Appeals, based in New Orleans, ruled 2-1 to lift the injunction put in place in December by El Paso-based District Court Judge David Briones, a Clinton appointee.
The court’s two Republican appointees ruled that the plaintiffs in the suit — the city of El Paso and the Border Network for Human Rights — lacked the standing to challenge the administration’s use of the funds as an encroachment on Congress’s appropriation powers.
“The Supreme Court recently stayed a similar injunction from our sister circuit,” wrote 5th Circuit Judges Edith Jones, a Reagan appointee, and Andrew Oldham, who was appointed by President Trump, in the brief ruling.
The Supreme Court in July lifted an injunction by a different lower court blocking military funds for border-wall construction.
If the name Edith Jones rings a bell, you might recall that she was given serous consideration as a replacement for Justice David Souter before President George W. Bush settled upon Samuel Alito instead. April will mark her 35th year of service on the Fifth Circuit Court, and she turns 71 that same month.
The dissenter in the 2-1 vote was Judge Stephen Higginson, an Obama appointee, who agreed that the merits of the case deserved consideration but did not believe that the government could claim either irreparable harm or a likelihood of prevailing in the matter to justify the reversal.
Failure to build the wall will be one item on which the President will be taunted during his reelection campaign, but I suppose this ruling will give him cover as he will argue that meddlesome courts with Democrat judges did their best to prevent him from keeping his promise and delayed his plans by several years. That will likely be justification enough for his ardent supporters.
– JVW
Clinton appointee issues injunction against wall.
Reagan and Trump appointees vote to strike down injunction; Obama appointee dissents.
Please tell me again, Mr. Chief Justice, that there is no such thing as Democrat judges and Republican judges in our legal system.
JVW (54fd0b) — 1/9/2020 @ 9:33 amDoes it matter? I was under the impression that Trump and Pelosi had managed to put the Wall money on my daughter’s credit card in the $1.4 trillion spending bill three weeks ago.
nk (dbc370) — 1/9/2020 @ 9:40 amYou don’t have to be a ardent Trump supporter to favor Trump, if the wall is a big issue for you. Obviously he’s more likely to continue building the wall than his Democratic opponent.
David in Cal (f8ea8c) — 1/9/2020 @ 9:45 amnk, I thought you were up a good 60K on account of your daughter punking the Catholic High School at the last minute. That might buy a few feet of wall. That might also explain your “cape” on behalf of the Covington kids.
urbanleftbehind (5eecdb) — 1/9/2020 @ 10:08 amAre you disputing this as a valid argument? Have the left and the open borders brigade not been interfering with this goal every chance they get?
NJRob (4d595c) — 1/9/2020 @ 10:08 amAre you disputing this as a valid argument? Have the left and the open borders brigade not been interfering with this goal every chance they get?
Of course not. But when a politician makes a grandiose promise (“free health care,” “a beautiful wall”) to gullible supporters then it’s a bit rich to suddenly say, “Sorry, but the other party won’t let me do it.” You ought to have factored that into your strategy in advance. If, God forbid, a Democrat wins next year, he/she will have lots of fun trying to explain why Medicaid for All can’t get through Congress.
JVW (54fd0b) — 1/9/2020 @ 10:43 amYou don’t have to be a ardent Trump supporter to favor Trump, if the wall is a big issue for you.
If the wall is indeed a “big” issue for you then wouldn’t you by definition be an ardent Trump supporter?
JVW (54fd0b) — 1/9/2020 @ 10:44 am“Are you disputing this as a valid argument? Have the left and the open borders brigade not been interfering with this goal every chance they get?”
How much funding did the wall get while Republicans had congressional control?
Davethulhu (fab944) — 1/9/2020 @ 10:44 amIsn’t it cute how party affiliation shows up early on in an MSM report, but if Trump mentions a similar affiliation he’s a rotter? Why does Roberts’ assertion that there are no Democrat or Republican judges only apply when the decision goes the “correct” way?
Kevin M (19357e) — 1/9/2020 @ 10:58 amEl Paso should be for the wall – they built a wall on west side of town the heavily reduced cross border violence where the 6-7 mile wall was built
Joe-dallas (06b9e2) — 1/9/2020 @ 10:59 am“Sorry, but the other party won’t let me do it.”
I thought it was judges, not party.
Kevin M (19357e) — 1/9/2020 @ 11:00 amJudge Stephen Higginson, an Obama appointee, who agreed that the merits of the case deserved consideration
Agreed with whom? Not the other two, who ruled on standing alone.
Kevin M (19357e) — 1/9/2020 @ 11:03 amAgreed with whom? Not the other two, who ruled on standing alone.
From the NRO article:
JVW (54fd0b) — 1/9/2020 @ 11:13 amI thought it was judges, not party.
See my comment at 9:33 am.
JVW (54fd0b) — 1/9/2020 @ 11:14 amThis is another example of NeverTrump stepping on a rake. Then stepping on it again.
People who care about the wall care about illegal immigration. If that number is going down there are a couple of ways to play that. Trump can just point to the numbers and claim a victory. His opponents can point to the numbers and say it was an unneeded waste of money because illegal immigration was already going down. Wasting money counts against Trump.
What his opponents will actually do is focus on racism. Calling attention to how R’s didn’t go along with wasting money but D’s did tells people who do care about waste that they need to vote more R’s.
If illegal immigration is up or unchanged Trump blames the groups opposing the wall. His opponents could recycle their previous positions and say this isn’t an important issue. In this case, Trump and his opponents avoid talking about spending the money.
What his opponents will actually do is focus on racism.
Calling attention to the literal promise of the wall is just a brier patch with a rake included because it has the added implication that Trump voters are just so stupid and racist that they can only imagine a literal wall as the answer to the problem of too many brown people. Trump voters are more than capable of looking at this issue, determining whether they think illegal immigration is still an issue, and weigh that against other issues while discounting the “but no literal wall” talking point.
frosty (f27e97) — 1/9/2020 @ 11:27 amToo bad Edith Jones is 71. If she were 51, she would be on the short list for SCOTUS.
Bored Lawyer (998177) — 1/9/2020 @ 11:34 amRIP Mike Resnick, SF writer, lymphoma.
https://www.lawrenceperson.com/?p=18723
Kevin M (19357e) — 1/9/2020 @ 11:36 am#13: thanks. That was unclear from your previous excerpts.
Kevin M (19357e) — 1/9/2020 @ 11:38 amCalling attention to the literal promise of the wall is just a brier patch with a rake included because it has the added implication that Trump voters are just so stupid and racist that they can only imagine a literal wall as the answer to the problem of too many brown people. Trump voters are more than capable of looking at this issue, determining whether they think illegal immigration is still an issue, and weigh that against other issues while discounting the “but no literal wall” talking point.
I’m thinking back to four years ago when Donald Trump was gearing up for his run. In point of fact, a lot of the people (me, for one example) who were somewhat chilly to the Trump campaign thought that his insistence on an actual physical border wall (what you are referring to as a “literal wall”) was self-defeating, and that he could accomplish more by a combination of immigration law reform, worker verification legislation, and physical barriers where they made the most sense. We were shouted down by Trump’s Amen Chorus who insisted that only a physical barrier stretching across the entire southern border would be acceptable, just like their hero was advocating.
So it’s great now to see Trump groupies in an amazing combination of goalpost moving and furious backpedaling, suggesting now that a physical border wall isn’t the be-all end-all to border security. I’ll go ahead and chalk that up as a victory for the position that I was advocating four years ago, back when all the Trumpets had a fetish for a physical border wall.
JVW (54fd0b) — 1/9/2020 @ 11:38 amJVW,
Yes, there appears to be a correlation between judges and the party that appoints them, but not always.
If it were so, the ELEVEN straight SC picks by GOP presidents between 1969 and 1991 would have solidified conservative thought completely on our courts. Not to mention all the lower court judges they appointed.
It does seem that this century has seen a marked increase in partisan appointments, but to say that a Reagan or GHWB appointee is certain to rule in Trump’s favor isn’t supportable on the evidence. There are a number of more traditional Republicans who want nothing to do with Trump, as you may have heard.
Kevin M (19357e) — 1/9/2020 @ 11:46 amJVW (54fd0b) — 1/9/2020 @ 11:38 am
That was a position I advocated then and still do. Name-calling doesn’t change the underlying argument. Neither does assigning a position to me that I’m simply trying to point out.
frosty (f27e97) — 1/9/2020 @ 11:56 amR.I.P. The Graduate & Get Smart co-writer/co-creator Buck Henry
Last call for the Cone-Of-Silence.
DCSCA (797bc0) — 1/9/2020 @ 11:58 amJVW (54fd0b) — 1/9/2020 @ 11:38 am
Just to clarify, I don’t object to the name-calling. Call me whatever you want. I might have entertained the “how dare you misrepresent me” tactic when I first started posting but I don’t really care for it. I’m certainly not NeverTrump which doesn’t leave much room if names are being assigned.
frosty (f27e97) — 1/9/2020 @ 12:12 pmWalls seem to have a powerful impact on safety on the border. They may not be a 100% solution but if the democrats were smart they would give Trump a few billion just to eliminate the political advantage he has on this. I can’t stand Trump and I momentarily consider voting for him when I think about this one, even now, knowing Trump is a ridiculously bad president.
It’s 2020. We can have internet applications at our consulates and embassies worldwide, and immigration applications should be approved before anyone comes here. We should approve lots and lots of applications, quickly, requiring only that they aren’t criminals or needing benefits. We should put all repeat illegal immigrants, and those immigrants who are convicted of serious crimes and completed their sentences, on huge barges and ship them to Cuba by the thousands (just kidding).
Dustin (d9d65a) — 1/9/2020 @ 12:14 pmNeither does assigning a position to me that I’m simply trying to point out.
Well forgive me then for not being able to follow your argument. But you started out your comment by talking about NeverTrump stepping on a rake, when it seems to me that it’s been the Administration itself who has bollixed up a lot of this. From extremely dumb promises (“Mexico will pay for it”) to the inability to reform immigration from within while they had a GOP majority in Congress (don’t blame Paul Ryan and Mitch McConnell for this fiasco; the Trump Administration dithered on their support for border legislation because they were trying to figure out how to pretend like they were keeping their lavish promises), the Trump Administration has been its own worst enemy in this regard.
JVW (54fd0b) — 1/9/2020 @ 12:16 pmJVW,
I doubt the reason for the support for a physical wall was a lack of imagination, but rather a healthy imagination informed by decades of smoke and mirrors regarding immigration. It was exasperation, not myopia. There is a time past which metaphors can’t compete with concrete structures.
Kevin M (19357e) — 1/9/2020 @ 12:23 pmFrom extremely dumb promises (“Mexico will pay for it”) to the inability to reform immigration from within while they had a GOP majority in Congress
Truth in every word there. “Inability” being the hallmark of this administration.
Kevin M (19357e) — 1/9/2020 @ 12:24 pmOne could blame the GOP Senate for not nuking the last vestiges of the filibuster in 2017 — something the Democrats will do as soon as that’s the only barrier to their platform. But maybe they are better served by letting the Democrats wield the bloody knife.
Kevin M (19357e) — 1/9/2020 @ 12:28 pmSpend a few evenings now and then at dusk near the ‘walls’ in San Diego County and you’ll learn real fast that walls really don’t work too well. At times it can look like ants swarming over a french fry.
DCSCA (797bc0) — 1/9/2020 @ 12:32 pmUnlike many commenters here, I do not really attempt to be a sophisticated political observer. It’s too easy for confirmation bias to take over, seeing everything your side does as clever strategy and politics, and everything the other side does as insidious evil and paradoxically horribly stupid.
But Trump did try to keep the border issue alive. Instead of fixing it immediately in January 2017, he was fixated on how he had a bigger party than Obama. He had a clear mandate on this one thing, more than anything else, and he blew it because solving the problem isn’t the art of the deal. He made a lot of promises he obviously couldn’t keep, but had he actually moved on this effectively at all, it would be a lot harder for his critics to dismiss him.
As it is, he makes effective appointments and a lot of unilateral positions, but has accomplished nothing lasting.
Dustin (d9d65a) — 1/9/2020 @ 12:36 pmIf this had been done, say, by 2007 with full coverage across Arizona a few years thence, Arizona would already be true blue.
urbanleftbehind (5eecdb) — 1/9/2020 @ 12:38 pmI totally understand Democrats being against anything that might help prevent an unending flood of government dependent and very likely Democratic party voters (illegal or not).
David Longfellow (44fae2) — 1/9/2020 @ 12:43 pmJVW (54fd0b) — 1/9/2020 @ 12:16 pm
Both can be true at the same time. i.e. Trump can be screwing this up and NeverTrump criticism can be missing the mark. Pointing to one isn’t an answer to criticism of the other. If I criticize a NeverTrump talking point “but Trump” isn’t really an answer.
frosty (f27e97) — 1/9/2020 @ 12:57 pmOf course, nevertrumpers sipping coffee at home laughing at Trump are not applying for a job as leader of the free world, so ‘But Trump’ can seem like a very relevant response.
Supposedly Trump was going to make ‘such great deals’ and bring the democrats to the table somehow, but it turns out no one trusts him (because he constantly lies and breaks promises) and he blew his chance when he didn’t need to make a deal, back when he had both houses of congress under the GOP.
But Trump fans have a hard time with this. They want to blame everyone but Trump for a failure of Trump to keep Trump’s promises. They want to say the promises were not keepable for obvious reasons, or that people who promised to defeat the promise didn’t make the deal Trump promised to make.
But this was Trump’s promise. He did not keep it. He didn’t intend to. Pelosi is not responsible for the checks Trump’s mouth wrote. But Trump.
Dustin (d9d65a) — 1/9/2020 @ 1:34 pmThis is the heart of the issue with illegal immigration. A lot of voters don’t either but they’ve decided most R’s and D’s are in favor of illegal immigration regardless of what they say to get elected. A lot of voters are also not in favor of it.
During the 2016 campaign, he had three choices: 1) embrace the standard R position, 2) embrace the D position, 3) articulate an alternative, 4) punch the issue in the face like a WWE wrestler and in his best Rick James/Dave Chappelle voice yell I’m Trump b!@#$.
#1 means saying all of the standard things about how this needs to be fixed, etc. This would send a clear signal that he had no intention of fixing this and at best amnesty was the plan. This doesn’t separate him from the herd and R’s could vote for any of the other guys to get that.
#2 means saying all of the standard things about how this needs to be fixed, etc. Now he’s no different from HRC and the other R’s.
#3 this requires a lot of work and runs the risk of sounding a lot like 1 or 2 at the end of the day.
#4 is easy to do and doesn’t require any work. It clearly stands out from 1, 2, and 3. It communicates very clearly that the promise is (a) he takes it seriously and (b) he’s not going to do the same things we’ve seen in the past.
It seems like I need to be clearer with my posts. I’m not saying by picking (4) I think he honestly takes it seriously, that he’s being honest in any way, or that I think #4 is a Good Thing(tm). I’m saying that’s what he did and that it worked. The blowback here isn’t in the specific details. We’ve beaten the literal/serious thing to death before and this is that. Whether it continues to work in 2020 has nothing to do with whether a wall is built.
frosty (f27e97) — 1/9/2020 @ 1:42 pmDustin (d9d65a) — 1/9/2020 @ 1:34 pm
It really depends on the conversation you want to have. If you want to talk about why Trump’s message resonated with voters and whether it will in 2020 at a level higher than most Americans are ignorant racists then it’s going to involve more than confident assertions, coffee, and nervous laughter.
frosty (f27e97) — 1/9/2020 @ 1:58 pmSo Melania immigrated on an Einstein Visa (possessing incredible talent) and worked doing that lesbian pornographic photo shoot, therefore making herself an illegal immigrant. NSFW link and frankly not worth your time.
Melania is not particularly attractive due to that scrunched up facial expression thing she does. We can find plenty of people able and willing to do this work better than she did. Therefore the Einstein Visa is invalid and she’s an illegal immigrant.
Frosty, it didn’t work.
Saying his promises were impossible from the get go is not the answer. He didn’t even try when he had the GOP house and a mandate to do something. By saying ‘but that’s how politics works’ you’re begging politicians to keep lying to you.
Dustin (d9d65a) — 1/9/2020 @ 2:02 pmHe got elected. We’re not talking about the jackass that wanted to build a wall while waiting for HRC’s next state of the union.
I’m not saying that. I’m saying you are misunderstanding how his promise was, is, and will be interpreted by people who vote for him. Call it goalpost moving if you want. We’ll see. I get the sense that you, JVW, and I are just talking past each other.
At the end of the day, what is the value of “but Trump”? It doesn’t explain anything. If that is the extent of the analysis why bother?
frosty (f27e97) — 1/9/2020 @ 3:02 pm@19 Yes, this. A physical wall stretching from the Pacific to the Gulf gives bad ROI out in the middle of the desert and causes all sorts of other problems in several other areas, however, can be beneficial in frequent crossing zones.
@24 They did try that strategy, but Trump wanted everything he wanted or he didn’t want anything at all, so he refused their offer.
Nic (896fdf) — 1/9/2020 @ 9:44 pmHmmm in hindsight, a shrewd political move for Trump. He knows his supporters have no where to go and are unwilling to hold him to any promises.
Dustin (d9d65a) — 1/9/2020 @ 10:09 pmActually, Edith Jones (“EHJ”) and Souter were the two finalists for the position that ultimately went to Souter. Both were at the White House and had a final interview with Bush, James Baker, and John Sununu the day Souter was nominated.
The story I have heard from some insiders was that at the end of the day Sununu wanted EHJ to be nominated, but Baker (who was always a big EHJ supporter, going back to her days as the general counsel for the Texas GOP) feared that they would not be able to get her through the Senate (a number of lefty organizations had already started smear campaigns and were clearly planning to Bork her). So Bush decided to nominate Souter, who was brought out with him for the announcement while EHJ was quietly snuck out the back door.
I’ve also heard that Bush later said that selecting Souter over Jones was one of the biggest mistakes of his presidency.
Whether Baker’s concerns were correct is something we’ll just never know. But imagine how the different the law would be had EHJ (who is more conservative than Scalia, and maybe even Thomas) been on the Court instead of Souter (and Souter’s replacement, Sotomayor).
LKB (e665a9) — 1/10/2020 @ 9:36 am