Despite President Donald Trump’s contention that last week’s U.S. Supreme Court ruling on funding for his border wall was a major victory, the 5-4 vote is anything but a “Big WIN for Border Security and the Rule of Law,” as he put it.
Indeed, the five Supreme Court justices who gave the White House the green light to divert billions of dollars in Pentagon funds to build sections of the wall were appointed by Republican presidents, including Trump.
It is also noteworthy that the majority did not provide a lengthy explanation for its decision. The justices said among the reasons they were doing so was that the government made a “sufficient showing at this stage” that those bringing the lawsuit did not have a right to challenge the use of the money.
But that begs the question: If this case was about standing, then what about the more important constitutional crisis triggered by Trump’s declaration of a national emergency on the southern border?
Indeed, the five justices of the Supreme Court could have ruled in favor of the administration, while at the same time placing a hold on the expenditure of the money until a lawsuit in the lower courts made its way to Washington.
Here’s how the crisis was created.
President Trump had originally asked Congress for $5.7 billion to build the wall, but the House and Senate decided to give him $1.37 billion for about 50 miles of fencing.
Trump, who is in re-election mode and is determined to show his supporters that he has kept a major 2016 campaign promise, decided to get the money by declaring a national emergency on the southern border.
In so doing, the Republican president created a constitutional crisis that can be resolved only by the Supreme Court.
During the national discussion about Trump’s unprecedented actions, Atty. Alan Dershowitz, highly regarded Harvard Law School professor emeritus, called the president’s declaration of a national emergency a “mistake” and pointed out that “emergencies are things that happened suddenly.”
Problems with immigration along the southern border are long-standing.
The Supreme Court would be expected to resolve this question: What constitutes a national emergency?
FLAWED 9/11 COMPARISON
As Trump sees it, the “invasion of drugs and criminals coming into our country” is no different than the Sept. 11, 2001, terrorist attack on America’s homeland that claimed more than 3,000 lives, or the Persian Gulf War, or any of the 50 or so previous emergency declarations under a 1970s-era law.
But there’s one major difference that undercuts Trump’s presidential power grab: None of the past declarations sought to circumvent Congress’ constitutional authority and to spend money lawmakers had expressly refused to authorize.
“The Constitution requires that all spending bills originate in the House of Representatives,” Dershowitz noted. “This is a way of circumventing that provision of the Constitution.”
In brushing aside Congress’ power of the purse strings, Trump announced he plans to divert $3.6 billion from military construction projects. He also intends to use more traditional presidential discretion to redirect $2.5 billion in Defense Department money and $600 million fro a Treasury Department asset forfeiture fund.
Along with the $1.375 billion approved by Congress for the fencing, the president would have a total of $8 billion for barriers along the border.
The case decided last week only dealt with the $2.5 billion from the Defense Department. The administration said the money would be used to construct more than 100 miles of fencing.
While Republicans in Congress were unsurprisingly silent about the ruling – even though it undermines the Legislature’s constitutional authority – Democrats were quick to criticize what the five justices had perpetrated.
House Speaker Nancy Pelosi, D-Calif., accused Trump of trying to “undermine our military readiness and steal from our men and women in uniform to waste billions on a wasteful, ineffective wall that Congress on a bipartisan basis has repeatedly refused to fund.”
Pelosi correctly noted that the Supreme Court’s decision “undermines the Constitution and the law.”
Senate Democratic Leader Chuck Schumer of New York called the decision “deeply regrettable and nonsensical.”
Three of the four justices who voted against the administration said they would not have allowed construction to begin. The fourth would have allowed the government to finalize contracts for the fencing, but not to begin construction while the lawsuit proceeds.
The Supreme Court’s ruling in favor of Trump goes beyond the border wall. It serves to reinforce his belief in the imperial presidency. That should worry all Americans.