Patterico's Pontifications


SCOTUS agrees with Government’s use of Military Funds for Border Wall during Appeal

Filed under: Immigration,Law — DRJ @ 7:06 pm

[Headline from DRJ]

U.S. Supreme Court lets Trump use disputed funds for border wall:

The U.S. Supreme Court on Friday handed President Donald Trump a victory by letting his administration redirect $2.5 billion in money approved by Congress for the Pentagon to help build his promised wall along the U.S.-Mexico border even though lawmakers refused to provide funding.

The conservative-majority court on a 5-4 vote with the court’s liberals in dissent blocked in full a ruling by a federal judge in California barring the Republican president from spending the money on the basis that Congress did not specifically authorize the funds to be spent on the wall project fiercely opposed by Democrats and Mexico’s government.
A brief order explaining the court’s decision said the government “made a sufficient showing” that the groups challenging the decision did not have grounds to bring a lawsuit.

Trump celebrated on Twitter.

RELATED: “Trump announces ‘safe third country’ plan with Guatemala in deal that will keep asylum-seeking migrants from trekking north through Mexico to the United States; Deal will allow the U.S. to refuse asylum to Hondurans and Salvadorans unless they first apply in Guatemala.”

OR NOT: “Guatemala’s Constitutional Court had ruled that a safe third country deal could not be signed without prior approval from the country’s Congress, which is on a summer recess.”


37 Responses to “SCOTUS agrees with Government’s use of Military Funds for Border Wall during Appeal”

  1. Logical result. ACLU says they’re going to overturn SCOTUS with an appeal to a leftist district court.

    NJRob (3b9b14)

  2. Yes, Rob, and it will be all the racist Trump’s fault.

    Colonel Haiku (2601c0)

  3. Well, if POTUS can appropriate funds however he wants then who needs to make deals with Congress about the budget? Heck, who needs Congress?

    Kishnevi (df17af)

  4. They refused to comply with a law from 2006,

    Narciso (f848af)

  5. And there was much rejoicing. Obviously, when Congress fails to do its job by declining to do the things the President wants done then the President must use his pen and phone to do these needful things himself. Some silly people used to believe that this was the worst kind of usurping the powers of the legislative branch but fortunately nobody believes such nonsense now.

    Jerryskids (702a61)

  6. My guess is the Court believes a President has the national emergency authority to divert lawfully appropriated funds from the military to the border:

    In an unsigned order, justices said they ruled in favor of the administration partly because “the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review” of the administration’s compliance with the federal statute invoked to divert the military funds

    I think it is this statute.

    DRJ (15874d)

  7. So much for Mexico paying for it.

    DCSCA (797bc0)

  8. I think another district court refused to enjoin the transfer of funds for the Wall because the petitioners had no standing to object. That is probably correct if this is based on statutory emergency powers.

    DRJ (15874d)

  9. Pick-up the peso, eh, Donaldo.

    DCSCA (797bc0)

  10. I updated the post with articles about an agreement with Guatemala.

    DRJ (15874d)

  11. The Supreme Court ruling was very narrow: that the people suing to stop it would probably be found to lack standing.

    Dave (1bb933)

  12. Saying “SCOTUS agrees with use of Military Funds for Border Wall” is not really accurate, IMO, since they did not rule on the use of military funds, per se.

    Rather, on procedural grounds, they lifted an injunction that had been blocking it.

    Dave (1bb933)

  13. So, to recap, Trump gets his funding due to lack of standing, not the merits of the case, and Trump’s announcement of a deal with Guatemala was FakeNews.

    Paul Montagu (e70a29)

  14. I don’t think this decision was based on standing, although earlier I could not find the decision to be sure. To me, “did not have grounds” is not the same as standing.

    However, I think the Court’s unsigned Order, with Justice Breyer’s concurrence and dissent, is now available and it shows this was not decided on standing. It says the injunction is stayed pending disposition of the 9th Circuit appeal. This could happen for many reasons but Justice Breyer’s opinion clarifies that the main issue at this point is which side will be harmed most by granting or denying the stay pending the appeal.

    The petitioners claimed building the wall would cause irreparable environmental damage. The government claimed the appropriated funds will be lost if not used prior to the end of the fiscal year (9/30/19). Breyer wanted to let the government proceed with the construction contracts so the money is not lost, but not actually start construction.

    In essence, this isn’t the great win Trump celebrated because he could still lose in the 9th Circuit and that appeal is still pending. But SCOTUS agreed with the government that it would suffer the greater harm from enjoining further construction while the appeal continues.

    DRJ (15874d)

  15. But you are right about the headline in that SCOTUS is not saying the government can use the funds permanently, only while the court case proceeds.

    I changed it to “SCOTUS agrees with Government’s use of Military Funds for Border Wall during Appeal.” The bolded portions are new.

    DRJ (15874d)

  16. Yes their version of the 9th circus got in the way,

    Narciso (f848af)

  17. Fair enuf, DRJ. I cop to being a little flippant on my 2nd glass of cab.

    Paul Montagu (e70a29)

  18. We had to guess until we could see the Order, Paul. Even reading the Order doesn’t mean I’m right but I think this is correct.

    DRJ (15874d)

  19. I think the statute only lets a President divert funds for emergencies for 180 days. But the Order doesn’t mention this so even if it is the case, it may not have mattered to the Court.

    DRJ (15874d)

  20. I was going off this statement at FAKENEWSFAILINGCNN:

    In a brief order, the court said that it was ruling in favor of the Trump administration before the litigation has played out because the government had made a “sufficient showing” that the challengers did not have the legal right to bring the case.

    “…did not have the legal right to bring the case…” sounds like lack of standing to my non-lawyerly ears, but maybe (probably) there are other scenarios that also fit that non-specific description.

    Dave (1bb933)

  21. That does sound like standing, Dave. I am not sure where that language comes from.

    DRJ (15874d)

  22. Again, we had to rely on the early reports until the Order was released, but early reports are often confusing.

    DRJ (15874d)

  23. this is the 175th anniversary of the st paricks battalion when americans stood up against tyranny.

    lany (db68e4)

  24. Well, if POTUS can appropriate funds however he wants then who needs to make deals with Congress about the budget?

    Do you really thing that appropriation bills allocate every last dime? So much for pencil sharpeners at the Sioux City FBI office, etc?

    Kevin M (21ca15)

  25. The Supreme Court ruling was very narrow: that the people suing to stop it would probably be found to lack standing.

    I thought they found they DID lack standing. But in any case the SC did NOT rule on the merits, although 3 justices would have.

    Kevin M (21ca15)

  26. I think I just read chuck and nancy can’t believe SCOTUS is allowing Trump to steal money from the Military. First time they ever cared about Military funding.

    mg (8cbc69)

  27. 1. “Among the reasons … the plaintiffs have no cause of action….”

    2. The stay is in place until disposition of the government’s appeal in the Ninth Circuit, or until disposition of the government’s cert petition if it loses in the Ninth Circuit, or until final judgment by the Supreme Court after granting cert, whichever comes last.

    TL;DR The Supreme Court thinks the lawsuit is frivolous but it will let it go through the channels as long as the government is not harmed by some stupid preliminary injunction.

    It is a YUGE win.

    nk (dbc370)

  28. Beyer is just playing his usual games. What’s astounding is that the 4 liberal justices would deny the POTUS the right to start building a border wall because of a Federal District Court ruling. But then this is no more outrageous than deciding the US can’t put a question about Citizenship on the Census, or saying – in clear violation of the Congress intent – that Trump couldn’t bar certain foreign nationals from getting Visa’s.

    Roberts is looking more and more like a clown, unwilling to rein in his politicized Left-wing judges who want to rule against everything and everything Trump does and act like an un-elected Dictators. Of course, the founding fathers NEVER imagined that the two elected branches of Government would tamely submit to the un-elected 3rd Branch ruling over them.

    rcocean (1a839e)

  29. In a power struggle between congress/POTUS and Congress and the judiciary the first two have ALL the power under the Constitution. The Appeal and District Courts only exist at the will of Congress and what they can rule on is decided by Congress. The SCOTUS can be “packed” anytime Congress wishes. And they control the purse strings and can bribe or threaten the Judges with Retirement packages or salary cuts.

    However, no attempt has been made to rein in these judicial tyrants since FDR. The reason is quite simple. The Courts are doing what the Big Donors want and what the Congressman REALLY want. But letting the Courts enforce the will of the Big Donors, everyone is happy. Conservative Congressman get to rail against it (while secretly applauding), the big donors get what they want, and the liberals get what they want (90% of the time). The only ones who get screwed are the American People. At least that percent that actually care about the country.

    rcocean (1a839e)

  30. Breyer agreed with the conservatives regarding the government’s argument that the stay should be lifted, rcocean. He only dissented because he did not want construction to start pending appeal, but it can now. Appeals typically take months or years (although this one may be expedited) so this should let the government get something done.

    You may be right, nk. It is hard to imagine a court curtailing a President’s emergency powers because of environmental concerns. Was the “no cause of action” language a signal to the 9th Circuit? If there is a serious procedural or substantive problem, why not dismiss this sua sponte? Maybe only trial courts can do that.

    DRJ (15874d)

  31. If the emergency statute has a 180 day limit, I assume Trump will simply renew his emergency order to continue funding from military construction funds authorized by Congress for FY 2020. I don’t know if Congress specifically authorized funding for military construction in the recent budget bill that lasts through FY 2021, but I assume it did. If it did and if it did not prohibit use of the funds on the wall (which I doubt) — then it undermines the petitioners’ argument that Congress specifically refused to fund the wall.

    DRJ (15874d)

  32. IANAL but French is, and he mentioned a coupla things. First, there are three funding sources for Trump Wall: $601 million from Treasury, $2.5 billion from “Department of Defense funds transferred for Support for Counterdrug Activities” and $3.6 billion from DoD military construction funds. The plaintiffs are only challenging the $2.5 billion. Second, the final ‘grafs are sensible.

    To be clear, this is not a final judgment for the administration, nor does it represent a ruling that the administration’s diversion of funds was lawful. It merely casts substantial doubt on whether the plaintiffs are the right parties to seek to protect Congressional authority. The stay remains in effect while the Ninth Circuit decides the case and until ultimate disposition in the Supreme Court.
    Judicial overreach isn’t merely a product of erroneous decisions on the merits. It depends on stretching other doctrines beyond their proper bounds. As I’ve written before, nationwide injunctions grant individual district court judges an enormous amount of power to block the actions of the political branches of government. Lax standing rules grant activists almost unlimited ability to launch waves of litigation, often in cherry-picked jurisdictions.
    The Supreme Court may ultimately decide this case on the merits (and I’m less convinced on the merits, frankly), but for now it’s right to cast doubt on a sweeping lower-court injunction granted on behalf of plaintiffs who haven’t yet been able to adequately articulate the legally recognized harms they’ve suffered in what is ultimately a battle between Congress and the president of the United States.

    Paul Montagu (dbd3cc)

  33. Was the “no cause of action” language a signal to the 9th Circuit? If there is a serious procedural or substantive problem, why not dismiss this sua sponte? Maybe only trial courts can do that.

    Yes, I think it was strong signal, with a whistle, bells, flashing lights, and a striped barrier to the lower courts.
    I don’t think the Supreme Court can grant a 41(b) motion. I’m also tempted to say that denials of 41(b) motions for failure to state a cause of action are not even appealable. They have to let it play out. In the meantime, no injunction.

    nk (dbc370)

  34. If the majority was sending a message to the 9th Circuit, so was Breyer:

    “This case raises novel and important questions about the ability of private parties to enforce Congress’ appropriation power.”

    DRJ (15874d)

  35. Paul (and nk),

    I agree with you that French thinks this was about standing, at least in part. However, I thought about this last night and I doubt the Court can rule based on standing at this stage of the proceeding. The trial court found the petitioners have standing but this appeal is about the injunction. The Court ruled that, in balancing the interests involved, the harm to the government from the injunction was worse than the harm to the petitioners from having the injunction lifted. IMO that is all the Court can do now because that is the only issue before the Court.

    The Justices can send signals about what should or could happen next, but that is really up to the 9th Circuit. If the Court doesn’t like what the circuit court does, it will have the chance to fix it down the road.

    DRJ (15874d)

  36. Quaint to see the court’s “conservatives” betray their ‘principals’ in support of adding to the deficits and debt.

    For a wall Mexico was supposed to pay for.


    DCSCA (797bc0)

  37. I mixed up my (b)s I think. 12(b)(6) motion.

    nk (dbc370)

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