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Supreme Court Decides to Take a Border Wall Case

Added 10-19-20 04:21:01pm EST - “The implications of this move are as yet unclear.” - Reason.com

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Posted By TheNewsCommenter: From Reason.com: “Supreme Court Decides to Take a Border Wall Case”. Below is an excerpt from the article.

Earlier today, as Jonathan Adler notes, the Supreme Court decided to hear Trump v. Sierra Club, one of several cases involving challenges to President Trump's diversion of various funds to build his border wall. The Ninth Circuit court decision in this particular case addresses Trump's efforts to Section 8005 of the 2019 Department of Defense Appropriations Act to use some $2.5 billion in military construction funds to build parts of the wall. It should not be confused with a similar case (also decided by the Ninth Circuit, and involving most of the same parties), which ruled against Trump's efforts to divert military construction funds by using 10 USC Section 2808, one of a number of powers triggered by Trump's declaration of a "national emergency" at the southern border.  Unlike the Section 2808 case, the current case does not involve the crucial issue of the scope of presidential "emergency" powers.

As a general rule, a Supreme Court decision to hear a case is not good news for whichever party prevailed in the lower courts (in this case the plaintiffs opposing the border wall). It is certainly possible that the conservative majority in the Supreme Court decided to take the case because they want to overrule the Ninth Circuit on the merits—i.e.  conclude that Trump had the authority to use Section 8005 to divert the funds. But other scenarios are also possible.

In both this case and an earlier, preliminary, Ninth Circuit ruling on the same subject, the lower-court dissenters focused mainly on the procedural argument that the plaintiffs in the case lacked a proper "cause of action" to challenge the funding diversion. This is in fact one of the questions the Supreme Court chose to consider. If they overturn the Ninth Circuit on procedural grounds, that leaves open the possibility that other parties can still challenge the funding diversion and secure a ruling on the merits against it. For example, the US Court of Appeals for the DC Circuit—in a decision written by prominent conservative Judge David Sentelle—recently ruled that the Democratic-controlled House of Representatives has standing to pursue a claim based on constitutional separation of powers grounds.

A ruling on the merits in favor of the administration would be an important victory for Trump. But it could still leave open the possibility that he can transfer funds using Section 8005, but not Section 2808, thereby denying him access to some of the pots of money he wants to use.

Finally, it is possible that the Court took the case because a majority of justices would like to rule against the administration on the merits. In this scenario, the justices might wantto send a strong signal that presidents are not allowed to play fast and loose with the spending power, which properly belongs to Congress.

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