May 25, 2019


Federal Court Signals That President Trump Will Ultimately Lose Battle Over Border Wall (Elura Nanos, May 25th, 2019, Law & Crime)

[O]n the question central to the judge's decision - whether Trump has the legal right to fund the border wall - Judge Gilliam had plenty to say.

If Trump actually thought he had authority to do this, he wouldn't have asked Congress first.

Sometimes, that whole "better to ask forgiveness than permission" thing works for government, too. Judge Gilliam brought up a little legal history that would have been eerily familiar to the Trump Administration if anyone there had ever actually studied constitutional law. During the Korean war, President Harry Truman sought federal control over the steel industry. Just as Trump did with border funding, Truman asked Congress first; when Congress refused, Truman declared that he had independent authority to take control, based on "national emergency" standards. Ruling against executive authority, the Supreme Court called out Truman for making an illogical argument: if he actually believed he had independent authority, why did he bother asking Congress first?

The similarity wasn't lost on Judge Gilliam, who wasn't about to endorse the actions of a president looking to "disrespect the whole legislative process and the constitutional division of authority between President and Congress."

Lack of planning on your part does not constitute an emergency on my part.

Trump's main argument for border wall funding is based on presidential power to fund "national emergencies." The entire concept of an "emergency" - both legally and logically - is that it requires circumstances for which advance planning was impossible. Nothing could be further from the truth with regard to Trump and his trumped-up border crisis. "Build a wall" was Trump's battle cry even before he became president, and little has changed since then (unless you're counting the edit from "Mexico pays" to "the Pentagon pays").

Judge Gilliam just wasn't buying what Trump was peddling; any "need" for a border wall was exactly the opposite of "unforeseen":

Defendants' argument that the need for the requested border barrier construction funding was "unforeseen" cannot logically be squared with the Administration's multiple requests for funding for exactly that purpose dating back to at least early 2018.

The court's opinion also included a spectacular smack-down in a footnote.  Trump's argument -- that the need for border-wall funding was "unforeseen," because he thought Congress would simply appropriate the money - actually helps the plaintiffs' side of this lawsuit.

If ... the Administration expected, or hoped, that Congress would appropriate the funds to DHS directly, that highlights rather than mitigates the present problem with Defendants' position.

This is going to cause serious constitutional problems.

Although Judge Gilliam's language is more complex than Schoolhouse Rock, his message isn't far off. Congress is in charge of the federal budget, and the president is not. Judge Gilliam found that if the court were to "permit this massive redirection of funds" it would amount to an "unbounded authorization for [the president] to rewrite the federal budget, and "would pose serious problems under the Constitution's separation of powers principles."

In other words, Trump is attempting to step all over Congress' turf, and he should really just stay in his own damn lane if we're to avoid a constitutional disaster.

Back when we were kids, Republicans used to complain about activists judges who overturned legislatures and constitutional case law. Nowadays. we have Donald acting against the legislature and Court precedent and his fans praying activist judges will support him.  

Posted by at May 25, 2019 5:29 PM