(Photo by Justin Sullivan/Getty Images)
Quietly, this has been a very bad week for WALL. While the Supreme Court has allowed Trump to steal money from other Department of Defense projects in order to build his vanity metaphor for bigotry, the big part of WALL funding was to come from an illegal misappropriation of funds from the 2019 Consolidated Appropriations Act (CAA).
Two district courts, one in California and the other in Texas, put an end to all that nonsense. The government will likely appeal to the Circuit Courts, but for now, WALL is once again a petty rhetorical threat and not any closer to becoming a physical reality.
The first case ruling came down yesterday in El Paso v. Trump. Judge David Briones permanently enjoined Trump’s attempt to steal $1.375 billion dollars from the CAA and redirect it towards the WALL. Pursuant to Trump’s (ridiculous) declaration of a “national emergency,” the administration invoked 10 U.S.C 2808. Section 2808 allows the President to undertake “military construction projects” to “support the armed forces” in the event of war or a national emergency. The Trump administration argued that The WALL was such a construction project, and that Section 2808 allows Trump to appropriate the funds, over the express objection of Congress.
Judge Briones completely rejected that argument. The administration had hoped that the Supreme Court’s ruling in Trump v. Sierra Club — where the Supreme Court allowed Trump to steal DoD money for WALL — would make Briones think twice about making his preliminary injunction a permanent one. But he did not. Briones was able to easily distinguish the misappropriation of DoD dollars from this attempt to use Section 2808 to take money from the CAA.
In fact, Briones even got a little cute and used the fact that Trump was allowed to steal money from DoD as evidence that closing off Section 2808 was not necessarily preventing Trump from building his WALL. He wrote: “[T]his injunction merely stops the unlawful augment of the funds that were already appropriated for border wall funding.” That’s good jujitsu right there. Briones is using Trump’s success to stop him.
The second ruling against Trump came down in the consolidated cases of California v. Trump and Sierra Club v. Trump. The same issue was at play in California as in El Paso: Trump wanted to use Section 2808 to steal money from the CAA.
Judge Haywood Gilliam largely rejected Trump’s arguments. But Gilliam did give baby Trump one small bottle. He ruled that the President’s declaration of a national emergency was something that a court could not rule on: “The Court accordingly finds that whether the national emergency truly exists, and requires use of the armed forces, are nonjusticiable political questions.”
I think Gilliam is wrong. I think that when the President makes up a national emergency for the expressed purpose of subverting the will of Congress, a court does not have to pretend to be blind. Invoking a national emergency as a pretext to get around the Constitutional separation of powers is not a political question, it’s an illegal act. Courts should feel free to tell that to Trump.
But anyway… while Gilliam decided to stay out of the national emergency fight, he wasn’t willing to play deaf and dumb in the face of Trump’s definition of “military construction.” He found that a court could know what a military construction is, and 175 miles of bigotry ain’t it.
In other words, Defendants contend that “military installation” is “inclusive of [any] activities under the jurisdiction of the Secretary of a military department.” See id., Dkt. No. 236 at 13. The Court finds several flaws with this expansive interpretation.
First, Defendants’ interpretation requires the Court to disregard the plain language of the statute. Defendants would have the Court transform the definition of “military installation” to include not just “other activity,” but “any activity” under military jurisdiction. That simply is not what the statute says…
Second, Defendants’ interpretation would grant them essentially boundless authority to reallocate military construction funds to build anything they want, anywhere they want, provided they first obtain jurisdiction over the land where the construction will occur.
This has always been the key weaknesses and authoritarian horror of the Trump argument. Under Trump’s theory, the federal budget is actually a blank check, passed by Congress, that the President can use for whatever he wants, so long as he says the magic words “military construction” before taking the money. Today, it’s WALL, tomorrow, it could be freaking golf courses. The day after that, it could be Ivanka’s birthday party.
While this week’s rebukes have been harsh, we’re talking about rebukes from Judge Briones and Judge Gilliam, not rebukes from Justices Neil Gorsuch and John Roberts. Everything we’ve seen from the craven, Republican Supreme Court suggests that when they get to weigh in, they will find a way to let Trump do exactly what he wants. Conservatives will be all to happy to rule that the President can steal money to erect a monument to American bigotry, just so long as it’s a Republican President doing the stealing.
But, there’s a ticking clock here. These rulings will have to be appealed. The injunctions will have to go through the Circuit Court process, before reaching the Supreme Court. We’re going to have an election in less than a year, and even an aggressively fast track suggests that the alleged attempted rapist Brett Kavanaugh won’t be able to serve his master before the next election. And even if he is, it’s not like WALL is just going to spring out of the ground like it’s in a pop-up book. After they get the money to build it, the stupid thing would have to be, you know, built. If Trump loses reelection, the whole thing stops anyway, no matter what the Supreme Court does.
If he wins reelection, the Supreme Court will probably clear these injunctions and allow Trump to have his way. But, you know, every wall in history has eventually failed. The Supreme Court can embarrass itself and set bad legal precedents as much as it likes. Eventually, Trump’s WALL will come down, if it ever goes up in the first place.
Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.