A Green Light on the Border Wall as Trump’s Supreme Court Victories Mount

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In June, 2017, a majority of Supreme Court Justices reached a subtle compromise that few expected regarding Donald Trump’s ban on travellers from predominantly Muslim countries entering the U.S. They issued an unsigned opinion that didn’t quite bless the President’s so-called travel ban—then in its second iteration, after multiple judicial setbacks—but nonetheless gave something to both sides. On the one hand, the Court said, the government would not be allowed to enforce the entry restrictions “against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” But, on the other, “all other foreign nationals” to whom the restrictions applied could be barred from the country. The decision was hugely consequential: the Trump Administration was forced to go back to the drawing board to craft a third executive order—one narrower and less discriminatory than the two that preceded it. A year later, a divided Supreme Court let that order stand as a proper exercise of Presidential power under immigration law.

Like his travel ban, Trump’s desire for a wall along the southern border represents an early campaign promise on immigration that was later whipped into public policy. But, unlike the travel ban, which arguably rested, as Chief Justice John Roberts insisted, on a “comprehensive delegation” of legislative authority to the President, Congress has delegated no such authority to the nation’s chief executive to build a wall. Neither has it appropriated the necessary funds to build it. Instead, legislators turned down his many requests for border-wall funding.

In response to this legislative resistance, over which the President saw fit to shut down the government for the longest stretch in history, Trump took executive action and separately declared a national emergency at the southern border, under the controversial and somewhat failed National Emergencies Act—a statute that, since the Watergate era, has given Presidents broad discretion to respond to true emergencies. Congress rejected Trump again by rebuffing his emergency declaration—a first for any President since the National Emergencies Act became law, in 1976.

Yet Trump soldiered on, vetoing that rejection. As part of the executive defiance, the Pentagon twice notified Congress that it would be shifting funds appropriated for other purposes to build more than a hundred miles of border fencing and similar barriers. Citing “unforeseen military requirements” and the need for “higher priority items,” the Trump Administration told lawmakers that the reprogramming of $2.5 billion for Trump’s border wall was “necessary in the national interest”—all buzzwords that the Defense Department lifted from a military-appropriation act that purports to allow the department to move money around, provided certain conditions are met. Democratic senators who oversee military spending were enraged by this play. “We are dismayed that the Department has chosen to prioritize a political campaign promise over the disaster relief needs of our service members, given the finite reprogramming authority available,” they wrote to Patrick Shanahan, the Acting Secretary of Defense at the time.

Against this backdrop of checks and balances, the Supreme Court chose, on July 26th, to side with the Trump Administration, in the first of the legal disputes over the border wall to reach it. Since the moment Trump declared a national emergency, relying on this and other authorities to move ahead with a construction project that Congress wouldn’t fund, several lawsuits have been filed—each attempting to prevent the Administration from spending the money and to remind the President how the separation of powers and the power of the purse work.
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