RSN Fundraising Banner
Can Anyone Stop Trump's Border Wall?
Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=51302"><span class="small">Dror Ladin, The Atlantic</span></a>   
Saturday, 03 August 2019 13:21

Ladin writes: "On Friday, when the Supreme Court temporarily allowed the Trump administration to begin construction of his border wall using up to .5 billion in military funds that Congress had denied, President Donald Trump declared a 'big victory.'"

Migrants, part of a caravan of thousands from Central America trying to reach the United States, climb down a steep hill near the border wall into the U.S. from Tijuana, Mexico. (photo: Leah Millis/Reuters)
Migrants, part of a caravan of thousands from Central America trying to reach the United States, climb down a steep hill near the border wall into the U.S. from Tijuana, Mexico. (photo: Leah Millis/Reuters)

Can Anyone Stop Trump's Border Wall?

By Dror Ladin, The Atlantic

03 August 19

The Supreme Court temporarily allowed the administration to begin construction. That doesn’t mean victory for the president is certain.

n Friday, when the Supreme Court temporarily allowed the Trump administration to begin construction of his border wall using up to $2.5 billion in military funds that Congress had denied, President Donald Trump declared a “big victory.” But last week’s order is far from a final ruling. The Supreme Court has not yet decided the ultimate outcome of the case, and no court has given Trump’s abuse of powers the stamp of approval, said that the wall construction is lawful, or suggested that the groups bringing the lawsuit—the Sierra Club and the Southern Border Communities Coalition (SBCC)—do not face real injuries from Trump’s actions. That said, the Court’s order could signal that it is now open to radically cutting back on some of the most basic constitutional safeguards that protect American democracy.

Let’s be clear on what the 5–4 majority actually decided, and the context in which they decided it.

Ever since he announced he was running for office, Trump has claimed that he was going to build a wall. Congress has consistently refused to put taxpayer funds behind that campaign promise. Earlier this year, Trump responded to Congress’s denial of wall funds with the longest government shutdown in U.S. history. For 35 days, ordinary government activities ceased.

Congress held firm, and passed a bipartisan budget that denied any funds to construct a wall outside of Texas. But when Trump signed Congress’s budget into law, he announced that he was going to disregard its limits and take additional billions of dollars from the military for his wall.

Trump’s actions represent an unprecedented power grab. The Constitution is clear that only Congress has the authority to decide how to spend taxpayer funds. The Founders viewed this separation of powers as a key protection against tyranny. As James Madison wrote in The Federalist Papers: “The power over the purse may [be] the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people.”

The Sierra Club and the SBCC then sued to block the wall, enlisting the American Civil Liberties Union, where I work, to take them on as clients. Their members live in, protect, and treasure the lands and communities along the southern border, which are threatened by construction. The administration conceded that these groups have “standing” to sue, which means that they face harm from the government’s actions and have a personal stake in the lawsuit.

Earlier this summer, a district court blocked the administration’s efforts to divert $2.5 billion for the wall—money that Congress originally appropriated for military pay and pensions, chemical-weapons disposal, and support for our allies in Afghanistan. The administration’s argument was that a particular transfer authority, known as Section 8005, gave it the power to redirect these funds.

But Section 8005 is restricted to transfers for “unforeseen military requirements,” and cannot be used to fund an “item” that Congress “denied.” As the district court held, Section 8005 couldn’t possibly apply here: Trump has been asking Congress to pay for a wall for years, and Congress expressly and repeatedly denied that request.

That government appealed the district court’s decision, arguing that the Sierra Club and the SBCC aren’t entitled to judicial review. Even before the appeal was decided, however, the administration asked for an emergency order allowing it to start immediately spending military funds on the wall. When the Ninth Circuit denied its request for an emergency order, the administration asked the Supreme Court to step in.

And it did, issuing a temporary stay. In Friday’s order, a five-justice majority refused to even look at whether Section 8005 applied to Trump’s transfer of taxpayer dollars to the wall. Instead, the majority’s brief, one-paragraph order stated simply that the administration had shown “at this stage” that the Sierra Club and the SBCC could not get judicial review of whether the administration was unlawfully claiming a power under Section 8005. The words at this stage are key. To receive a temporary stay, the bar was lower than for normal court review. The government had to show only a “fair possibility” that it would ultimately prevail. Possibility does not mean eventuality.

But even the Court’s temporary order gives real cause for concern. The administration has been pushing the extreme view that no injured party—not the ACLU’s clients, not affected states, not even the House of Representatives—can go to court to block the president’s blatant abuse of power. Government lawyers have argued in every case challenging wall construction that the president’s actions are effectively unreviewable by the courts. They claim it’s enough for the president to simply say that his actions are authorized by Section 8005, and that no one has the authority to say otherwise.

That is a dangerous proposition, and it would be a huge setback for the American democratic system if the Supreme Court ultimately adopts it. But Trump hasn’t succeeded in persuading five justices to give him that power yet—and for good reason.

Centuries-old precedents empower courts to halt lawless and unconstitutional executive action. As the Supreme Court recognized just four years ago, in a case called Armstrong v. Exceptional Child Center, “The ability to sue to enjoin unconstitutional actions by state and federal officers … reflects a long history of judicial review of illegal executive action, tracing back to England.”

A basic rule of American democracy is that when the government acts without legal authority, the courts are open to injured parties. If the courts close their doors, blatant abuses of power will go unchecked. Everyone in the executive branch, from FBI agents to Cabinet secretaries to the president, would be empowered to disregard the rule of law.

The government told the Supreme Court that if the Sierra Club and the SBCC ultimately win, courts can order that the unlawful wall be taken down. We plan to hold the government to its word, and will seek the removal of every mile of unlawful wall built while this temporary stay is in place.

Email This Page your social media marketing partner


A note of caution regarding our comment sections:

For months a stream of media reports have warned of coordinated propaganda efforts targeting political websites based in the U.S., particularly in the run-up to the 2016 presidential election.

We too were alarmed at the patterns we were, and still are, seeing. It is clear that the provocateurs are far more savvy, disciplined, and purposeful than anything we have ever experienced before.

It is also clear that we still have elements of the same activity in our article discussion forums at this time.

We have hosted and encouraged reader expression since the turn of the century. The comments of our readers are the most vibrant, best-used interactive feature at Reader Supported News. Accordingly, we are strongly resistant to interrupting those services.

It is, however, important to note that in all likelihood hardened operatives are attempting to shape the dialog our community seeks to engage in.

Adapt and overcome.

Marc Ash
Founder, Reader Supported News

+8 # coberly 2019-08-03 21:59
The Supreme Court should not have the last word. "Abuse of power" is exactly the kind of "high crime" contemplated in the Impeachment clause. And such "high crimes" need exist only in the opinion of the House and Senate.

Impeachment and conviction is unreviewable.

Trouble is, it may be too late. The "vast right wing conspiracy" is real and it has stacked the Senate as well as the Court with its own chosen men.
+2 # Citizen Mike 2019-08-03 23:24
Let him try o build his wall, it will be a huge boondoggle and waste of money and will fail to keep immigrants out. A wasteful failure that runs overbudget as crooked crony contractors line their pockets and substandard materials collapse is exactly what I want the public to see Republicans doing, it will damage them severely!
-14 # aljoschu 2019-08-04 02:58
Obviously, it is the majority of people and voters in the US who voted for the Border Wall and for Trump because he promised to stop illegal immigration. I personally may like it or not. It is illegal. A minority is against that, true, but are we for minority rule? We're proud to be a democracy, but only when it comes to decisions we personally like.
Trump said he would build the wall and he got elected. Accept democracy! Accept the will of the majority of people, even if it hurts you personally. You may campaign for voters to change their mind - next time. Be happy in the meantime that the majority voted down on Clinton. We most probably would have a new war already somewhere out in Iran, in Syria in the Ukraine or elsewhwere. This Lady was a warmonger. She gets physically excited by cruelty (see her reaction on the killing of Gaddafi or that famous foto with her in "the war room" when Bin Laden was killed).
So what do want?
+4 # lfeuille 2019-08-04 18:05
The majority did not vote for Trump. He is a minority president. The second in 20 years and the worst 2 presidents in history.
+2 # Secular Humanist 2019-08-04 22:31
Quoting aljoschu:
Obviously, it is the majority of people and voters in the US who voted for the Border Wall and for Trump because he promised to stop illegal immigration...but are we for minority rule?

I am afraid you are flatly wrong here and amazed at your ignorance regarding a fundamental truth regarding the 2016 election. Over 3 million more "people and voters" (hopefully all the voters were,in fact, people) voted for Clinton than voted for Trump. True, he won the Electoral college, but then the selection of Trump constitutes minority rule, does it not? But it is the system we have.

By the same token, the system we have is a representative democracy, or republic, not a direct democracy. And we have rule of law, under a constitution. If you actually read the article you would realize it is Congress, not the President, which gets to decide where money is to be spent -no matter the plurality or lack thereof by which the President is elected. By suggesting the President can override the Congress' budget, you are saying you are OK with an authoritarian Presidency and effective one-person rule. Is that what you meant to say?
+2 # SusanT136 2019-08-06 11:00
Quoting aljoschu:
Obviously, it is the majority of people and voters in the US who voted for the Border Wall and for Trump because he promised to stop illegal immigration...

As others have pointed out, Trump was not elected by a majority, he was elected by a minority of the voters, enabled by the Electoral College.

Additionally, he promised over and over on the campaign trail that Mexico would pay for the wall. How many of his voters would have cheered if he had said “By the way, I’m going to take $2.5 billion from the military budget including from military pay and pensions to pay for the wall’?
-5 # Rodion Raskolnikov 2019-08-04 07:09
Probably the wall cannot be stopped. Some form of a "wall" has been underway since the US annexed Texas, New Mexico, Arizona, and California from Mexico back in the 19th century. The people who lived in those former parts of Mexico were all "Mexicans" who believed they could move around -- north or south -- in their own country without restriction. The Washington regime felt the opposite way.

"Indians whose lands are split in half between the United States and Mexico, are baffled by the idea that they now need documents to move about their traditional lands. "

Here is a useful timeline for US border walls --

Brief History: A Timeline of the U.S. Border Wall

The first real "wall" was built in 1993 under Bill Clinton. So far, he built more wall than Trump has.

The current wall hysteria was begun by GW Bush -- "2006 – President Bush signs the Secure Fences act, promising 700 miles of fencing on the border, plus a virtual wall across the entire 2,000-mile border. "

Walls are the history of the US conquest of North America. Probably it cannot be stopped. Trump is just a minor cog is a vast engine of imperialism.
+5 # coberly 2019-08-04 08:48

thanks for the reminders. but i think Trump is a major cog.

The wall will not stop immigrants, but it will stop the animals whose essential territory crosses the border. And I believe the people who live along the border will find the wall destructive to their quality of life.

what is new with Trump is the sheer arrogance. He doesn't give a damn about the Congress, much less the people or the environment.

I don't think the wall will come down soon. And I doubt the contractors will be much worse than the contractors who built the Berlin Wall, which lasted until it was torn down by people finally brave enough to act.
+2 # revhen 2019-08-04 12:59
If a million of us showed up blocking construction . . . .
+2 # coberly 2019-08-04 22:21
it would save America...the one we used to believe in... the land of the free and the home of the brave.
+2 # Secular Humanist 2019-08-04 22:50
Mexican cartels are laughing at the United States -not because we haven't built a border wall yet, but because there's the possibility that we might actually do it.

Yes, it would impose a very minor inconvenience to their human trafficking and drug trafficking activities, but they would be more than compensated by the sheer entertainment value they would receive when they gathered to witness sections of the wall exploding in rubble and twisted iron as they demolished a million-dollar section at a time with a few hundred dollars' worth of explosives. They could even blow holes in it by the hundreds with an ancient Howitzer located miles away. And if anyone thinks these cartel bosses can't get their hands on a few explosives or an old Howitzer and a supply of shells, that person doesn't know much about the cartels.

Construction of a wall would be far worse than a major boondoggle. It would be a giant sucking sound for resources that need to be used elsewhere and yet another contribution to the mounting U.S. debt, disruptive to wildlife migration, and another insult to our southern neighbors. And it would be absolutely ineffective as a barrier to human and drug smuggling.
+2 # coberly 2019-08-06 10:59
the supreme court does not get the last word on this. flouting the power of the purse by declaring a phony emergency is exactly what "high crimes" means. impeachment and conviction are not reviewable by supreme court.

problem is all those republican senators who act more like gang members than patriots, and a few spineless democrats.