Strains credibility

Republican judges do Trump’s bidding on border wall

Faced with constitutional challenges to the president’s initiative, the judicial branch has run for cover in a manner that strains credibility.

By DAVID ROGERS

All eyes are on impeachment this week. But President Donald Trump’s border wall is churning up a second constitutional crisis all by itself on the sidelines.

The wall is not the issue. Instead, it is the extreme steps taken to undercut Congress’ constitutional power over spending and the response thus far by the judicial branch, which has run for cover in a manner that strains credibility.

Indeed, since the wall fight moved to the federal courts last year, it often has seemed as political as it was in Congress. From California to Texas to blocks from the Capitol, thousands of pages of legal briefs and opinions have been filed in the past 12 months. But with a troubling consistency, the outcomes match whatever political party chose the judge making the decision.

To be sure, it’s early enough that the sample of judges is limited. But the sole exception — Richard Clifton, a senior judge on the 9th Circuit U.S. Court of Appeals — seems a reminder of a lost time: a jurist nominated by a Republican president, George W. Bush, approved by the Senate 98-0 and willing now to break party lines and stand up to Trump.

More often, the record shows a fresh crop of judges nominated by Trump has stepped in for the president, either to stay injunctions or deny standing to those challenging his unprecedented use of emergency powers to get around Congress.

The wall’s opponents have gained traction only when they appear before at least one Democratic-appointed judge. That explains the focus now on the 9th Circuit, where a panel of three judges — including two Democratic appointees — has agreed to expedite hearings on a suit brought by the American Civil Liberties Union on behalf of the Sierra Club.

But those oral arguments won’t be heard until early March and the president seems emboldened to move billions more to the wall while the window is open.

Only weeks after Congress approved fresh 2020 appropriations in December, the Pentagon was asked on Jan. 15 to come up with enough money to build an estimated 270 miles of wall under the heading of “counter-drug” activities. That’s double the miles contracted under the same title in 2019, yet Defense Secretary Mark Esper has laid out a schedule for a prompt decision by his department in the coming days.

The request from the Department of Homeland Security was framed not in dollars but in miles of construction over six sections of the border. So the estimated cost of meeting this goal is not yet public. But the White House is relying on diverting more Pentagon funds to wall construction than it did in 2019.

On the ground, only about 30 miles of wall have been built thus far from all the military funds moved last year. But the pace will surely quicken in 2020.

For example, all of the $2.5 billion in 2019 counterdrug funds is now committed to contracts for 129 miles of wall construction. The $3.6 billion taken from military construction funds is expected to add another 175 miles, but the money arrived later and progress is slower. Just four of 11 projects are still without contracts and construction is just getting started for many of the others.

Looking ahead to 2020, about $7.2 billion in new defense funds will be in play: $3.5 billion under the rubric of antidrug activities and $3.7 million from military construction accounts. That’s about $1 billion above last year’s total and a fivefold increase above the $1.375 billion which Congress actually appropriated for new wall construction in 2020.

Watching with astonishment is Louis Fisher, a constitutional scholar and veteran senior specialist on separation of power issues for the Congressional Research Service. "I can't imagine anything more dangerous than a president who says he can take funds appropriated for other purposes and shift them to build the wall along the southern border, claiming it is necessary to satisfy a campaign pledge,” Fisher said. “I'm surprised that hasn't been brought into the impeachment process. I’m just stunned.”

A recent 2-1 decision by a three-judge panel of the 5th Circuit U.S. Court of Appeals illustrates the partisan dynamics.

At issue was an injunction issued by U.S. District Court Judge David Briones in El Paso, Texas, blocking the $3.6 billion in military construction funds that had been diverted to the wall in September 2019 by the Pentagon.

Briones, nominated by President Bill Clinton, grounded his ruling on a specific limitation written into the fiscal 2019 Consolidated Appropriations Act. El Paso County, which claimed injury because of the loss of a Fort Bliss roads project, was the plaintiff. And after reaching his decision in October, the judge followed up in December with an injunction tailored to block just the military construction funds being used for the wall.

The administration appealed to the 5th Circuit for a stay on Briones’ injunction. What it got was even more.

The two Republican-nominated judges granted the stay, but then went further. They rejected El Paso’s request for an expedited hearing on the merits of the case and also cast doubt on the county’s standing to bring suit in the first place.

One of the two judges was Andrew Oldham, a controversial Trump nominee added to the 5th Circuit in 2018. Ironically, the 42-year-old attorney and former counsel to Texas Gov. Greg Abbott had played a prominent role only years before in challenging President Barack Obama’s authority to carry out his own immigration policies.

The sole Democratic-appointed judge on the 5th panel protested, saying his colleagues were ignoring “a constellation of sensitive and complex legal questions all in the context of a nationwide injunction.” But it was the standing issue that stood out for Richard Bernstein, a retired Washington attorney and former clerk to the late Supreme Court Justice Antonin Scalia, who has been active in filing amicus briefs in the wall fight.

“The most pernicious aspect of the Fifth Circuit's ruling is stating that the Constitution denies these plaintiffs standing to enforce statutory limits on executive branch spending without any hint that the Constitution permits anyone else to enforce such limits,” Bernstein said. “The Fifth Circuit's license to Presidents to violate statutory limits on spending puts separation of powers in grave danger."

In fairness, federal courts of all stripes have shied away from stepping into turf wars between the executive and legislative branches. But the wall fight is exceptional in two regards.

First is the raw nature and size of Trump’s actions: forcing a shutdown of the government last year and then transferring billions of dollars without the approval of Congress or its Appropriations Committees.

Second, the judicial branch bears some responsibility for tipping the scales in Trump’s favor when the Supreme Court in 1983 struck down the past practice of Congress using legislative vetoes as a check on executive agencies.

Such vetoes had been a convenient tool for Congress to strike a balance between two goals: giving executive agencies more discretion to administer laws while also retaining some authority for lawmakers to step back in when they felt it was needed. But in INS v. Chadha, the justices ruled that the practice violated the Constitution since the legislation was never presented to the executive branch for the president’s signature as required by the separation of powers.

The National Emergency Act — which Trump invoked last year to justify his going around Congress to build the wall — was among the laws most affected by Chadha. As enacted in 1976, the act allowed lawmakers to terminate any emergency proclamation by a president if majorities in the House and Senate adopted such a concurrent resolution. That safety valve disappeared after Chadha and it’s now Trump who has the veto to frustrate attempts by Congress to curb his emergency authority in the wall case.

To solve one separation of powers question, the courts created another. But rather than rule on the merits and risk going against the president, the easier route for Republican-appointed judges is to deny standing to those challenging the wall funding.

Richard Pildes, a law professor at New York University, said whatever the merits of Chadha, the impact on all branches — including the courts — is real.

“Had Chadha come out the other way, these issues would have been fought over between Congress and the president,” Pildes said. “And if the Congress were opposed to these particular uses of emergency powers and voted them, then the courts wouldn’t be in the picture at all potentially.”

The fact the White House continues to shift more money adds to the stakes. “I was sorry to hear that Trump plans again this year to take money away from military needs to spend on his wall,” said Charles Tiefer, a law professor at the University of Baltimore. “That bodes badly for the rest of his time as president.”

Tiefer, who served in the office of the General Legal Counsel for the House, in the ’80s and early ’90s, joined last May in an amicus brief urging that the House be given standing in federal court to bring a lawsuit challenging Trump’s funding of the wall. The 18-page document, filed in the U.S. District Court for the District of Columbia, stands out for its bipartisan character: those signing included House counsels who had served Republican and Democratic speakers going back 40 years.

Like the impeachment proceedings in the Senate, the brief is laced with the Federalist writings of Alexander Hamilton and James Madison. “The House of Representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of government,” Madison wrote. And he and Hamilton both saw Congress’ singular “power of the purse” as the best way to counter “the sword” of the presidency.

In 2015, in fact, a Republican-appointed judge in the same D.C. federal court, had granted standing to the House — under GOP control — when it sued the Obama administration. Then, too, it was an appropriations-related issue, but this time with Democrats in control of the House, U.S. District Court Judge Trevor McFadden, a Trump appointee, denied standing last June.

“There are two or three different appropriations provisions but the most important is that no money can be spent except by appropriation,” Tiefer said. “Congress has a strong position that not only did Trump violate the ordinary general constitutional distribution of power in taking money that had been provided for the military needs in and spending it instead on the border wall. But this also violated the powerful constitutional provision that focuses on not spending any appropriations except under specific provisions.”