Saturday, July 27, 2019

Supreme Court Becomes Another Brick in Trump's Wall

by Michael C. Dorf

**Updated and corrected

Friday'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 addresses "unforeseen military requirements." That language appears in the 2019 military appropriation act that the government relied upon to shift funds to border wall funding. The government's argument parallels the equally absurd claim that the declaration of "a national emergency . . . that requires use of the armed forces" (as required by another statute) authorizes the freeing up of other funds to build the border wall.

Below I explain why the Court's order might reflect 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 statutory provisions allowing the president to divert funds from one appropriated purpose to address unforeseen military requirements or emergencies 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 unforeseen. 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 unforeseen circumstance or emergency.

(2) Moreover, construction of a border wall is not a "military requirement," nor, in the parallel example involving the national emergency declaration, do any circumstances "require[] use of the armed forces" to build the wall. Again, these terms should be understood in the context in which Congress used them: 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 limitations 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 for "unforeseen military requirements," 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 crisis, that should only grant the president the power to divert funds towards projects that actually address the crisis. Such projects need not address the crisis perfectly, but there ought to be some greater connection than the fact that both the crisis and the purported solution involve the border.

Fair enough, you might say, but what has any of this to do with the Supreme Court's order? That order was not on the merits but was based on the conclusion that "the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with" the statutory provision authorizing reprogramming of money for "unforeseen military requirements."

I promise that beginning two paragraphs down I shall explain why the SCOTUS order reflects a view of the merits, but I want to pause over what's wrong with the decision on its own terms. As the ACLU/Sierra Club brief in the SCOTUS made extremely clear, the plaintiffs did not claim that the federal appropriations statute itself conferred on them a right to sue. Rather, they argued that they had an equitable action to enjoin unauthorized government action that injured them or, in the alternative, that they had a cause of action under the Administrative Procedure Act (APA). The government introduced the "unforeseen military requirements" provision of the appropriations act to answer the plaintiffs' claim that it lacked authority to redirect the funds as it did. As we have seen, that is a very bad argument, but even if it were a good argument, it would not convert the plaintiffs' equitable/APA claims into claims that the statute itself conferred on them a right to sue.

Meanwhile, as a general matter, and as the Supreme Court has repeatedly recognized, equity in fact recognizes a right of parties claiming injury to sue to enjoin unauthorized government conduct. Sometimes--as in the 2015 SCOTUS case of Armstrong v. Exceptional Child Center--a statute either expressly or impliedly substitutes a different remedy or completely eliminates a judicial remedy. And it is conceivable that one or more justices in the majority in The Wall Case think that some statutory provision has eliminated the equitable cause of action to enjoin the government's unauthorized action here. But there is nothing in the appropriations statute (or the National Emergencies Act) that could plausibly be read to do that. And in any event, the terse order says nothing of this sort at all. What the Court actually holds is that the appropriations statute does not confer a cause of action. And that is simply a non sequitur.

Still, why does the Court's poorly reasoned order reflect a view on the merits? The short answer is because the majority rejects, without even discussing, the alternative proposed by Justice Breyer. The government argued that it needed emergency relief from the SCOTUS before the completion of even expedited review in the appeals court because if it failed to finalize its contracts for wall construction before September 30, it would lose access to the funds--an ostensibly irreparable injury. However, Justice Breyer also noted, beginning construction on the wall would cause irreparable injury to the plaintiffs' environmental interests. He offered a Solomonic solution: modify the injunction to allow the government to finalize the contracts now but not to begin construction on the wall until and unless the government wins on the merits. That should have been enough for the majority justices.

So why wasn't it? We cannot know exactly, given the order's brevity, but one plausible explanation would be that the majority did not think that giving the government the ability to finalize its contracts but not begin wall construction would sufficiently address the government's need for emergency relief. And why not? Perhaps because five justices of the Supreme Court think that the emergency justifying extraordinary relief from the Supreme Court is an urgent need to build Trump's wall.


Shag from Brookline said...

The "power of the purse" back in the 1787 Constitution was vested in Congress. Since then there has developed a different meaning to that phrase, to wit, the power of women with their purses. There is pending in the court of public opinion the case of The Squad versus The Fraud. This case is not before SCOTUS but surely it is aware of the case, even though the conservative five does not include a woman. Trump has boasted that Article II provides him the power to do what he wants as president. Perhaps Trump is also relying on the OLC opinion that a sitting president cannot be indicted. The OLC opinion is not specifically set out in the Constitution's text. How does originalism or textualism support the president's claim and the OLC opinion? What might a crazed president do of a criminal nature that he could not be indicted? Could such a crazed president physically threaten his Cabinet if it thought of taking steps under a recent Amendment to replace the president temporarily? Could such a president assault women, or others, with impunity while a sitting president? Think of Trump's recent comments on obliterating Afghanistan in a week or so, killing tens of millions, to resolve the situation there. Is there absolutely nothing a crazed president could do that would prevent indictment? What would be the role of the president's protectors in the Secret Service in such crazed events, to protect the president but not others that might be harmed in their presence? Is the OLC opinion an example of the law "as a ass"?

Joe said...

RBG had her latest interview and called Gorsuch and Kavanaugh "very decent" and queenly said she did not approve of changing the Court. As to term limits, she figured they weren't likely (did she figure Trump was?) while Breyer said he was open to the idea.

She might have overstaid her 15m. Anyway, the border order is b.s. and comes off as ideological b.s. too. I realize Prof. Segall thinks the justices all just vote their values but at some point this gets a bit too blatant. People warn critics about partisan fixes such as packing the Court. We wouldn't want the Court to look like partisan shills. Wake up upset law professor types (I had one self-righteous say something to me) and others ... that is already here.

What do you want to do with it? Eight person courts and other thought exercises aside.

Joe said...

("this to shall pass" btw works better when the justices come in .. or whatever the latest "very decent" judges are ... with a shred of legitimacy)

Shag from Brookline said...

Marty Lederman's Balkinization post of July 19, 2019 "Can Congress Investigate Whether the President Has Conflicts of Interest, is Compromised by Russia, or Has Violated the Law" focuses on the positions taken by Trump's personal attorneys in challenging certain efforts by House Committees to obtain certain financial records of Trump and the position of the OLC on the ability of Congress to obtain Trump's income tax returns. It's a long post but chilling if the positions taken by Trump's personal attorneys were to prevail, including that recent OLC opinion. Trump claims that he as president can do what he wants as president as noted in my earlier comment. And as Marty points out in detail in his Balkinization post, Trump personally can thwart Congress, with the assistance of Trump's DOJ via its OLC. Is Trump as president and individually above the law? Can Trum's DOJ neuter Congress' powers under the Constitution?