The following post is purely speculative:
Newly elected President Bernie Sanders asks Congress for money to build homeless shelters. The GOP led Senate refuses to appropriate the funds. In desperation, Sanders declares that homelessness is a national emergency, threatening to spread disease to our largest cities. He cites numerous conservative media outlets when making that claim.
Sanders then diverts $50 billion from the defense budget to the construction of homeless shelters. Conservative activists are outraged, and sue to stop this executive overreach. The case goes to the Supreme Court, where Justices Alito, Thomas, Roberts, Gorsuch and Kavanaugh decide that these activists had no right to challenge a government power grab. Sanders can continue building his homeless shelters.
A fairy tale? Probably. But the following is a true story:
In a 5-4 decision on Friday, the Supreme Court overturned two decisions by a federal judge that had barred the Trump administration from using military money for the wall. The federal judge had ruled the executive branch could not appropriate money for a purpose not specifically authorized by Congress.
. . . The administration argued that such redistribution of government funds was allowable given the president had declared a national emergency at the border in February.
The cases heard by Gilliam were lawsuits brought by the ACLU on behalf of the Sierra Club and Southern Border Communities Coalition, something that became key to the Supreme Court’s decision. In its ruling, the Supreme Court found that private groups are not appropriate parties to challenge the allocation of federal dollars.
Chief Justice John Roberts and Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas ruled in favor of lifting the Gilliam’s injunction. Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor supported the lower court’s decision.
Tell me again why we need “conservative” justices to protect the Constitution.
PS. The decision was partly based on a procedural issue, and further litigation is expected. But the final decision is expected to be the same 5-4 vote.
PPS. Are border walls effective?
READER COMMENTS
Ray
Jul 28 2019 at 12:36pm
Congress could pull back this power anytime they like. Legislating from the bench is not a precedent worth setting.
And of course barriers are effective as part of a broader strategy. Unless you live in a home without walls?
Philo
Jul 28 2019 at 12:46pm
Right! If Congress objects to what the President is doing, it should act to stop him, and not delegate the matter to the Supreme Court.
derek
Jul 29 2019 at 11:34am
Yes, Congress in fact sued to stop the President from using money that was not appropriated for the border wall, but the SC found them to not have standing to sue, which is also what the ruling in this case hinged on. So there is a big question of whether the SC thinks ANYONE can sue the President’s reappropriation of military funds to things that seem to be civilian.
Alan Goldhammer
Jul 28 2019 at 7:26pm
They already tried to stop him by not appropriating any more money to build the wall. The issue here is whether Executive Power can be used to move money from DOD to DHS for the purposes of building the wall. The President already moved down the slippery slope when he deployed troops to the Texas border because of a “national emergency.”
David S
Jul 30 2019 at 12:56am
Surely that ship sailed almost a century ago! A quick look at a Harvard politics site says that it was used in the 1930s.
I think it is a little late to set a precedent. And if only one side uses that power, the other side will be eliminated politically.
Maniel
Jul 28 2019 at 1:54pm
@Ray
I respectfully disagree with your interpretation of the SCOTUS action in Professor Sumner’s example.
“The best-known power of the Supreme Court is judicial review, or the ability of the Court to declare a Legislative or Executive act in violation of the Constitution, is not found within the text of the Constitution itself. The Court established this doctrine in the case of Marbury v. Madison (1803).” [reference] In my opinion, this should have been the role of the court in this case, i.e., to exercise this well-recognized authority.
@Philo
“If Congress objects to what the President is doing, it should act to stop him.”
You seem to be saying that Congress should pass 2 laws, the first appropriating the money (which they have done), and the second to “obey the first law.” Our Constitution says: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” Appropriations Clause, Article I, Section 9, Clause 7 [reference]
Ray said “Legislating from the bench is not a precedent worth setting.” I agree.
Steve Brecher
Jul 28 2019 at 2:33pm
Nah, it’s not a “true story”:
The Court overturned no decisions. It granted to the gov’t a stay of the District Court’s grant of an injunction against Trump’s action. A stay is a temporary block; in this instance, pending a decision in the U.S. Court of Appeals, and then, possibly, a decision by the Supreme Court.
Nostradamus
Jul 28 2019 at 2:56pm
At least as a matter of speculation, Sumner’s piece has some bearing on reality. The Court’s decision will have long-lasting effects on decisions made by conservative and progressive presidents alike, further obviating the need for Congress to act as a body with any power independent of the president. The comment on conservative justices is sobering and serves as a reminder that we really can’t expect much from those we put on a pedestal.
In contrast, we have Paul Krugman.
JohnB
Jul 28 2019 at 4:11pm
You misunderstand the purpose of the Great Wall. It was not meant as a barrier that would keep people out — it was far too long to be defended like a castle’s walls. It was meant to be a ‘horse resistor’, a kind of filter to slow horse transport and locate that transport to known locations.
An invading army could overrun the wall and take control of a gate or two. Then they could slowly walk their horses one-by-one through the gates, assemble on the other side, and raid and loot. But after that, they’d have to slowly walk their loot-laden horses back through the gates one-by-one on the way home. This meant that the Chinese government had more time to get a defending army together and on the way, and it meant that the army knew where the invaders were going to be: at the gates they had taken.
That meant that looting on a large scale wouldn’t succeed, because you couldn’t get your loot back home before you had to fight. That meant that only small-scale looting could be profitable — but the area on the other side of the wall wasn’t very rich and the minimum cost to taking over a gate wasn’t zero, so small-scale looting wasn’t very profitable either.
Lorenzo from Oz
Jul 28 2019 at 10:46pm
Do border walls work? Ask the Israelis.
https://en.wikipedia.org/wiki/Israeli_West_Bank_barrier
In fact, the Israelis have a bit of an export business in border walls.
The Chinese spent huge resources on border walls over about 2 millennia. That would suggest some benefit was being garnered.
Lorenzo from Oz
Jul 28 2019 at 10:51pm
That being said, I don’t like the idea of an end-run around Congressional control of budgets either. But, this is a procedural decision by SCOTUS, we will see how it plays out.
And it is possible that different flavours of judges protect different elements of the US Constitution.
Mind you, the two sides of American politics could accuse the other of betraying fundamental elements of the American Revolution, and they would both be right.
Lorenzo from Oz
Jul 31 2019 at 9:27pm
Opposition to The Donald’s border wall is not based on the expectations it would fail but the fear it would succeed.
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