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.