Supreme Court betrays Constitution by propping up President Trump’s border wall scheme

In an order issued by a 5-4 vote, the United States Supreme Court again allowed the construction of the border wall to continue even though it is clearly being done in violation of the Constitution.

Donald Trump campaigned for president on a pledge to build a wall between the United States and Mexico that he said would be paid for by Mexico. Congress repeatedly refused to provide funds to build the wall, even when both the House and the Senate were controlled by Republicans.

In December 2018 and January 2019, President Trump shut down the federal government for 35 days — the longest shutdown in history — rather than sign a spending bill without funds for the border wall. President Trump was determined to secure congressional funding before the Democrats took control of the House of Representatives in January 2019. But President Trump ultimately capitulated and agreed to legislation to fund the government even though it included not a penny for building the wall.

But then, defying the will of Congress, President Trump diverted federal funds from other military projects and began building the wall. Under the Constitution, Congress, not the President, controls the power of the purse. More generally, the Constitution requires that every major action of the federal government should involve two branches of government.

Enacting a law, including adopting a budget, requires Congress passing a bill and the president signing it, or Congress overriding a veto. Going to war requires Congress declaring war and the president, as commander-in-chief, waging it. Enforcing a federal law requires that the executive branch bring a prosecution and the judiciary convict. No Supreme Court decision in American history ever has approved the ability of the president to circumvent these checks and balances by spending a large amount of money without congressional approval.

President Trump claimed the authority to fund building the wall under the National Emergencies Act of 1976, which actually was meant to limit the ability of the president to claim powers by declaring a national emergency. The act has two important limits: the transfer must be “based on unforeseen military requirements,” and the transfer authority cannot be invoked if the “item for which funds are requested (had) been denied by the Congress.” Neither of these requirements is met in the use of funds for the border wall. There was no unforeseen military necessity and Congress expressly denied funding for constructing the wall between the United States and Mexico.

A year ago, federal court Judge Haywood Gilliam enjoined the federal government from using $2.5 billion in funds originally earmarked for military-personnel funds to build the border wall. The Trump administration went to the Supreme Court and in July 2019, in a 5-4 ruling, stayed Judge Gilliam’s order and allowed the government to use the Pentagon funds on the wall.

On June 26, 2020, the United States Court of Appeals for the Ninth Circuit affirmed Judge Gilliam’s order and enjoined the use of federal funds for the wall. The court explained that President Trump was violating the Constitution by spending money without congressional approval and that the National Emergencies Act provided no authority for the transfer.

On July 31, the Court, 5-4, without explanation stayed the Ninth Circuit’s decision and thus allowed the funding of the border wall to continue. Judge Breyer wrote a dissent, joined by Justices Ginsburg, Sotomayor and Kagan. He lamented that the Court’s ruling would mean that the money would be spent and the border wall constructed before the Supreme Court could hear the matter and decide the issue on the merits.

This should not be a close constitutional issue. The spending power is quintessentially in the hands of Congress. There is no emergency power in the Constitution — even assuming that the wall is being built because of an emergency — that allows the president to spend money without congressional authorization. As Judge Gilliam and the Ninth Circuit concluded, there is no federal statute that remotely provides authority for this.

The conservative justices’ deference to the Trump administration on this is inexplicable. It set a dangerous precedent for the future as presidents will know that they can fund their pet projects even when Congress refuses to appropriate money. It is inconsistent with the most basic notions of checks and balances. It is yet another instance of the Trump administration ignoring the Constitution in a way that has no precedent in American history.

This story was originally published August 8, 2020 at 5:00 AM with the headline "Supreme Court betrays Constitution by propping up President Trump’s border wall scheme."