Within days, America's highest court will weigh in on one of President Donald Trump's most divisive policies: his plan to build a wall on the southern border. Back in February, his declaration of a national emergency to redirect funds meant for other projects to build the barrier triggered a wave of lawsuits. In June a federal district court in California dealt a blow to the president’s plans. On July 3rd the Ninth Circuit Court of Appeals agreed with the lower court, prompting the Trump administration to rush to the Supreme Court for relief. The government wants the justices to issue a ruling by July 26th to permit it to use a pot of money in the defence budget to get started on the wall. Justice Elena Kagan—who handles such emergency appeals from the Ninth Circuit—has given wall challengers until July 19th to submit a written reply. The Supreme Court will rule soon afterwards.
The point of contention in Sierra Club v Trump is relatively narrow. It concerns one chunk of the $8bn Mr Trump says he needs to construct the barrier on the Mexican border: some $2.5bn in funds Congress directed to the Department of Defence to cover salaries, moving expenses and retirement benefits for army personnel. Mr Trump and his cabinet determined that these personnel costs were lower than expected and “reprogrammed” the funds to beef up counter-narcotics efforts along a 100-mile stretch of the southern border by constructing a fence. Section 8005 of the Department of Defence Appropriations Act of 2019, the White House said, permitted just such a transfer of cash.
But the district court in California pointed out two problems with this idea. First, section 8005 permits transfers only for “unforeseen military requirements” such as catastrophic weather events causing “hurricane and typhoon damage to military bases”. In contrast to these unanticipated circumstances, the flow of drugs across the Mexican border is old news and well understood. It is hard to describe the narcotics problem as “unforeseen”. Second, the free hand of the executive branch is constrained by a requirement in section 8005 that “in no case” may funds be redirected “where the item for which funds are requested has been denied by the Congress”. It would seem that the construction of the barrier on the southern border is precisely the “item” that Congress refused to fund to Mr Trump’s satisfaction, as this was the sticking point that led to the longest partial government shutdown in American history.
The appeals court panel’s 2-1 ruling on July 3rd largely tracked the lower-court decision, with N. Randy Smith (a George W. Bush appointee) dissenting. But Judges Richard Clifton (also tapped by Mr Bush) and Michelle Friedland (a Barack Obama appointee) added a rhetorical flourish to their opinion. Turning to a famous case from 1952 in which the Supreme Court thwarted President Harry Truman’s attempt to seize the nation’s steel mills during the Korean War, the judges cited Justice Robert Jackson’s declaration that America’s promise is “to be governed by those impersonal forces which we call law” rather than by presidential fiat. “The executive, except for recommendation and veto, has no legislative power”, Justice Jackson wrote. “[M]en have discovered no technique for long preserving free government except that the executive be under the law, and that the law be made by parliamentary deliberations”.
In his plea last week, Noel Francisco, Mr Trump’s solicitor general, told the Supreme Court that the district and circuit court’s views rest on “a misreading of the statutory text”. The law permits the president to add money to an existing budget line like border fencing even if Congress did not agree to the White House’s full funding package. Section 8005, he wrote, only bars the invention of entirely new lines Congress never dreamt of or explicitly deleted from the budget. Mr Francisco also argued that the challengers—two environmental groups objecting to the fence’s expected impact on the terrain on the border—are not “proper plaintiffs”. The “recreational and aesthetic” concerns of the parties objecting to the partition are not in the “zone of interests” that permits someone to sue. Anyway, the solicitor general added, any harm to their “‘ability to fish,’” “hik[e],” and “camp” is overwhelmed by the federal government’s interest in stanching the flow of illicit drugs across the Mexican border. The balance is “lopsided” in the government’s favour.
A year ago, the Supreme Court narrowly blessed Mr Trump’s ban on travel from mostly Muslim countries. The lineup—five Republican-appointed justices siding with the president’s policy, four Democratic appointees opposing it—gave fresh support to the view that the Supreme Court is a highly politicised institution. Now, while on their summer vacation, the justices have another presidential campaign pledge from Mr Trump to contemplate. How will the justices view this skirmish over funding for Mr Trump’s wall? Their provisional answer should come by the end of next week. The order will only address whether to block the lower court’s injunction against the funds transfer while litigation proceeds. But lifting the injunction would give Mr Trump an early advantage in building his long-promised partition.