Another Brick in the Wall

Michael Dorf is very good on why Trump’s five representatives on the Supreme Court allowing construction of the wall to go forward despite the fact that Congress didn’t appropriate the funds for it is for all intents and purposes approval on the merits, which is very bad for obvious reasons:

Yesterday’s Supreme Court order permitting the Trump administration to begin construction on a border wall using funds that were appropriated by Congress for other purposes was not exactly a ruling on the merits. Nonetheless, if one follows the clues in Justice Breyer’s separate opinion, it becomes apparent that five justices have tacitly accepted Trump’s absurd claim that the situation at the southern border is — as required by statute for the diversion of funds to be legal — “a national emergency . . . that requires use of the armed forces” to build a border wall.

Below I explain why the Court’s order should be understood as reflecting a favorable view of Trump’s substantive position, but first I ask readers to pause over the three serious legal flaws contained within that position.

(1) The Constitution vests the power of the purse in Congress, so the point of the statutory provision allowing the president to divert funds from one appropriated purpose to another requiring the use of the armed forces is to address unanticipated national security threats when there is insufficient time for Congress to authorize new appropriations. Whatever the dubious merits of construction of a border wall, it does not remotely qualify as unanticipated. Trump shut the government down to bully Congress into granting him authority and funds to construct a border wall. Congress did not cave, granting him some limited funding for fencing but specifically rejecting the kind of construction Trump now seeks to undertake. There is no emergency within the reasonable meaning of the National Emergencies Act or otherwise.

(2) Moreover, construction of a border wall does not “require[] use of the armed forces.” Again, that term should be understood in the context in which Congress used it: in recognition of the possibility that a national security crisis could arise requiring an immediate armed response. The fact that members of the armed forces will be used in a supporting role for the border wall construction does not mean that their use is “required.” If it did, then the limitation would be meaningless. The armed forces could be used in a supporting role for virtually any task a president wanted to accomplish by diverting funds. Suppose that, in response to China’s countervailing tariffs on US agricultural products, Trump decided to divert funds appropriated for other purposes to cash grants to farmers. Whatever the wisdom of such a decision, it would not fall within the statutory authorization, even if military personnel were used to deliver the checks or to provide security for the people delivering the checks.

(3) None of this is to deny that there is a genuine crisis at the border, but as everyone who is not a Trump apologist understands, it is a crisis that the construction of a border wall does not address. A border wall could be part of a strategy to prevent drugs and undocumented immigrants entering the country surreptitiously. However, the mostly Central American migrant families trying to enter the country seeking asylum are willing to present themselves at authorized border crossings — at least so long as other unlawful Trump administration policies don’t block them there. The bottom line here is that even assuming there is a national emergency, that should only grant the president the power to divert funds towards projects that actually address the national emergency. Such projects need not address the national emergency perfectly, but there ought to be some greater connection than the fact that both the crisis and the purported solution involve the border.

Evidently, to have brought up this kind of thing during the 2014 or 2016 elections would have been blackmail of the highest order.