While officially out of session, a never-ending series of emergency requests are keeping the nation’s highest court busy. Yesterday, they refused to lift their own stay on lower court rulings that President Trump’s theft of Defense Department funds to build a border wall was illegal.
The Hill (“Supreme Court declines to halt Trump border wall“):
The Supreme Court on Friday declined to block the Trump administration from using $2.5 billion in reallocated Pentagon funds to build a U.S.-Mexico border wall.
In a 5-4 ruling that broke along ideological lines, the court’s conservative majority denied a bid by interest groups to halt construction after a federal appeals court last month said the use of defense funding for the project is illegal. The court’s four more liberal justices dissented from the ruling.
The Sierra Club, American Civil Liberties Union (ACLU) and other challengers had asked the justices to lift their order from last July that allowed President Trump to begin spending the funds while legal challenges proceeded through the courts.
But the Friday ruling means the court’s July 2019 order, also decided 5-4, remains in effect despite a ruling by a federal appeals court in California last month that Trump’s diversion of defense, military and other funding was unconstitutional.
Justice Stephen Breyer, in dissent, said he feared the majority’s ruling “may operate, in effect, as a final judgment.”
Legal challenges arose early last year after Trump declared a national emergency at the southern border to free up additional funding. That came after a congressional spending bill allocated some $1.3 billion for border security, far short of the nearly $5 billion Trump said was needed to complete his signature project.
Trump then reallocated $2.5 billion in funding that Congress appropriated for defense and military uses.
A federal district court halted use of the reappropriated funds. But the Supreme Court’s July 2019 ruling allowed construction to move forward while the case proceeded through the courts.
Last month, a divided three-judge panel of the 9th Circuit Court of Appeals in California ruled against Trump’s financing maneuver.
The court said the administration had violated the Appropriations Clause of the Constitution, which gives Congress the exclusive power of the purse. The decision affirmed a lower court’s injunction against the use of defense funds to build the wall.
“These funds were appropriated for other purposes, and the transfer amounted to ‘drawing funds from the Treasury without authorization by statute and thus violating the Appropriations Clause,’ ” the majority wrote. “Therefore, the transfer of funds here was unlawful.”
Almost exactly a year ago, our erstwhile colleague Doug Mataconis analyzed the original stay order in a post titled “Supreme Court Backs Trump On Border Wall Funding, For Now.” Essentially, they were sympathetic to the Government’s position that they needed to spend the money before the end of the fiscal year and dubious of the Sierra Club’s standing to bring the case. Fair enough.
But the rationale for the stay was also to let the Government exhaust its appeal. They have now lost a second time, in the 9th Circuit. So, the ostensible rationale is moot.
As is customary in these rulings, the majority did not issue an opinion explaining its decision. Justice Breyer wrote a very short dissent, signed by all his Democrat-appointed colleagues:
Just over a year ago, I suggested “a straightforward way” to avoid irreparable harm to the parties in this litigation: stay the District Court’s injunction “only to the extent” that it “prevents the Government from finalizing [relevant] contracts or taking other preparatory administrative action, but leave [the injunction] in place insofar as it precludes the
Government from disbursing those funds or beginning construction.” Trump v. Sierra Club, 588 U. S. , -_ (2019) (slip op., at 2-3) (opinion concurring in part and dissenting in part from grant of stay).Now, the Government has apparently finalized its contracts, avoiding the irreparable harm it claimed in first seeking a stay. The Court’s decision to let construction continue nevertheless, I fear, may “operat[e], in effect, as a final judgment.” Id., at _ (slip op., at 2). I would therefore lift the Court’s stay of the District Court’s injunction.
As always, I must caveat that I’m a political scientist and not an attorney. But the whole case strikes me as bizarre.
First and foremost, Trump’s actions here are so plainly illegal that they shouldn’t survive summary judgment. If Presidents can simply take any money Congress appropriates for anything and spend it however they wish, the Constitution is stood on its head.
Second, however, it seems rather obvious that the Sierra Club lacks standing to sue on those grounds.
Third, Breyer is right: By allowing Trump to continue blatantly illegal actions another year—despite both the trial court and the appeals court ruling that they were in fact blatantly illegal—the majority essentially renders the case moot. Indeed, it’s possible the money has already been spent. What’s the remedy in that case?
Beyond that, it just strikes me as bad precedent. We have, by proxy, a rather serious Constitutional standoff between the two politically-elected branches. The judiciary has twice ruled on the matter but the highest court has stayed both orders, allowing the losing side to effectively win.
But now what? Is the majority effectively promising to grant certiorari on the case? If so, the money will almost certainly be spent by the time there’s a ruling on the merits. If not, they’ve thwarted the seemingly obvious rulings by the lower court without offering any precedential rationale.
