Supreme Court Hands Trump Administration A Decisive Victory Over A Rogue Judge and the Lawless Ninth Circuit

Detail from "The Bench" by William Hogarth (1758) judge, judges, court, courts

As part of President Trump’s executive action to jumpstart the construction of new miles of a border wall with Mexico, he tapped into several existing pots of money. This is the listing of sources and authorities.


Some quick notes on early coverage of President Trump’s announcement today that pretty much all reporters are missing 1/

The WH did not make one executive action today. In reality they made three, only one of which involved an emergency declaration. 2/

First the WH announced they would be funding $601 million in wall construction from the Treasury Forfeiture Fund, relying on 31 U.S.C. § 9705. This does not require an emergency declaration. 3/

Second, the WH announced they would be funding $2.5 billion in wall construction under 10 U.S.C. § 284 (this is MilCon $ for combating drug trafficking). This does not require an emergency declaration. 4/

Finally, the WH announced they would be funding $3.6 billion under 10 U.S.C. § 2808. This money does require an emergency declaration. 5/

According to the WH this money will be spent sequentially so the § 9705 money will be spent first then the § 284 money then the § 2808 money. 6/

So depending on how fast they can begin construction, they will have to spend over $5 billion (including the $1.3 billion in fencing appropriations) before any of the emergency money is ever tapped 7/

But under the legal regime which now governs the land, Lex Trumpitis, anything Trump wants to do is presumed to illegal and illegitimate, law and precedent be damned. In May, Sierra Club and the Southern Border Communities Coalition, represented by the ACLU, went to court claiming that the money Trump was using from the drug interdiction fund was illegally diverted to the wall. Never mind that the wall clearly served the purpose of drug interdiction. Never mind that under no circumstance did anyone have standing to go into court on behalf of the Congress of the United States and presume to express their will. District Judge Haywood S. Gilliam, an Obama judge–yes, Chief Justice Roberts, there are Obama judges on the court–issued a permanent injunction agreeing that the President and Secretary of Defense did not have the authority to use money appropriated for drug interdiction to interdict drugs. (No word if Haywood Gilliam is related to the distinguished scholar Dr. Haywood Jablowme of Morehead University who has signed many, many progressive petitions over the years.) Let me digress for a moment. This is a classic case of forum shopping for a tame or bent judge. The wall is not being constructed in Gilliam’s district. The contracting office for the project is not in his district. In fact, the wall construction was not even programmed for the Ninth Circuit’s jurisdiction. An yet a lone rogue judge declared the construction project illegal.


The Trump administration appealed to the Ninth Circuit and (shocked face) lost.

In a now familiar pattern, the administration appealed to the US Supreme Court and earlier this afternoon they ruled. In a 5-4 ruling, the court handed the Trump administration a signal victory. It lifted the injunction and said that the plaintiffs in the case most likely did not have any standing to bring the case in the first place. The stay anticipates the Ninth Circuit will rule against the Trump administration and orders the stay to be lifted until the Supreme Court rules on the case should that be necessary.

Hopefully, this is a sign that the Supreme Court is getting impatient with the #Resistance antics that are taking place in the Ninth Circuit and other places. Chief Justice Roberts is an institutionalist and he has to realize the immense damage this flouting of the law by the federal judiciary for the sole purpose of scoring cheap political points on a president the detest is doing to the public perception of the courts. The question is does he have the huevos to make the clown car on the West Coast behave.

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