Obama-Appointed Judge Blocks Trump's Wall: What's the Correct Ruling?

-edited

In the first ruling on the wall, a judge says Trump's plans to divert funds for wall exceeded its executive authority.

The Wall Street Journal reports Federal Judge Blocks Trump’s Border-Wall Plans.

U.S. District Judge Haywood Gilliam in Oakland, Calif., said President Trump’s plans to divert federal money to build a border wall, absent appropriations from Congress, exceeded the executive’s authority.

“Congress’s ‘absolute’ control over federal expenditures—even when that control may frustrate the desires of the Executive Branch regarding initiatives it views as important—is not a bug in our constitutional system,” Judge Gilliam, an Obama appointee, wrote in a 56-page decision. “It is a feature of that system, and an essential one.”

The judge issued a preliminary injunction that blocks the administration from proceeding on projects slated for immediate construction.

If and when the Trump administration announces additional projects at the border, the challengers in the case—environmentalists and southern border community organizations—can come back to court and seek an injunction against those as well, the judge said.

The ruling is the first of its kind on the issue. Several other border-wall cases are pending around the country, including one in Washington, D.C., where the Democratic-controlled House of Representatives is suing the Trump administration.

Judge Gilliam’s ruling twice quoted a Fox News interview with acting White House Chief of Staff Mick Mulvaney, who said the president would build the wall “with or without Congress.”

“The position that when Congress declines the Executive’s request to appropriate funds, the Executive nonetheless may simply find a way to spend those funds ‘without Congress’ does not square with fundamental separation of powers principles dating back to the earliest days of our Republic,” the judge wrote.

Additional Reasons

Fox News notes additional reasons Trump's Border Wall Construction Plans Blocked.

“Defendants’ argument that the need for the requested border barrier construction funding was ‘unforeseen’ cannot logically be squared with the Administration’s multiple requests for funding for exactly that purpose dating back to at least early 2018,” the Obama nominee wrote.

“This order is a win for our system of checks and balances, the rule of law, and border communities,” Dror Ladin, an attorney for the American Civil Liberties Union's National Security Project, said in a statement. “The court blocked all the wall projects currently slated for immediate construction. If the administration begins illegally diverting additional military funds, we'll be back in court to block that as well.”

With or Without Congress

Trump said all along that Democrat-appointed judges would attempt to block his wall but that he would be prevail in the Supreme Court.

I recall even some Republican Senators objected to such an approach out of fear that a Democrat president to do the same thing to fund global warming projects.

I am not a lawyer but it certainly appears Trump weakened his own case by blabbing "with or without Congress."

Court Structure

If Trump appeals the case, the US Court Structure comes into play.

Appeals Process

Most cases start at the district court level. Once a district court judge issues a ruling, or a jury issues a verdict glossary for 'verdict', a case can proceed to the circuit court level, or even all the way up to the Supreme Court. However, cases can move down the structure as well. If a higher court overturns a decision of a lower court, the higher court will usually remand glossary for 'remand' the case to a lower court. A complex case may go back and forth among the different levels one or more times.

After the circuit court issued its decision on the appeal, the case could go in a number of directions. The circuit court could remand the case back to the district court for further consideration. One of the parties could request a rehearing of the case by the circuit court as a whole -- what is referred to as an "en banc" panel of all the judges appointed to that circuit court. One of the parties could also appeal directly to the Supreme Court by requesting certiorari.

If four Supreme Court justices chose to issue a writ of certiorari, the Court would then issue a decision on the case. The Court could then remand the case back to either the district court or the circuit court, depending on its decision.

What's the Correct Ruling?

Whether or not one agrees with the wall is irrelevant. Whether or not Trump has authority to build the wall is the item in question.

Trump will certainly appeal.

If the Court of Appeals sides with the District Court, It's not clear if the Supreme Court would even take the case.

The reasons provided by Judge Gilliam seem solid to me.

Trump says the wall was an emergency. If so, why did Trump try for years to get funding?

Again, this has nothing to do with how one feels about the wall, but rather about authority to build the wall. Congress is supposed to allocate funds, not the executive branch.

Another Theory

Finally, please consider the possibility that Trump knows full well what he did was wrong and his decision would be blocked at the Supreme Court if not sooner.

Under this 4-D thinking theory, Trump simply wanted a hot campaign issue.

While, possible, the simpler explanation is this is just part of the Trump playground bully bluster in which he just acted without much thought process at all.

Mike "Mish" Shedlock

Comments (41)
No. 1-27
Menaquinone
Menaquinone

The Commander in Chief has Constitutional authority to divert military appropriations to defend against a border invasion.

abend237-04
abend237-04

If the 1.2 million illegals all arrived January 1st each year, having been escorted across Mexico from it's southern border by the Mexican army, our minds would clear and we'd know what to do. As it is, we're being slow-boiled like the proverbial frog, invaded and made fools of by Beltway fools elected to run the country.

Speaking of the rule of law, let's just try enforcing E-Verify for a few months, perp-walking repeat offenders hiring without using it and see if we then need more than a barbed wire fence at the border.

Carl_R
Carl_R

In my opinion, the ruling is correct. While I favor a wall, the Constitution is clear, spending originates in the legislative branch. Now, a complicating factor that I haven't seen discussed is that, I believe, Congress specifically authorized the President to make expenditures without specific authorization in cases of an unanticipated emergency. While there is an emergency, it can't be called unanticipated. Congress was aware of it, and deliberately refused to allow anything to be done about it.

My expectation is that this ruling will be upheld, even in the Supreme Court, and the decision may even be unanimous. In theory, at least, Liberal Justices have at times created new readings where they feel like it, whereas Conservative justices tend to be strict constructionists, reading the Constitution as written, and following accordingly. I doubt that Liberal Justices will want to use this issue to increase Presidential power, and I doubt that Conservative Justices will stray from what the Constitution says.

In the end I have to think that the President's legal advisors told him in advance that this wasn't going to fly. Therefore, I share your opinion that this was nothing more than a campaign stunt.

RonJ
RonJ

Maybe we need to investigate where every dime appropriated by congress was actually spent.

Greggg
Greggg

I wonder how many times the Federal Court system has intervened in a military/pentagon decision?

shamrock
shamrock

Trumpty had a $25B offer for a wall and blew it. What a deal maker. In any case, a wall really won't make any difference because the migrants have figured out they can just apply for asylum and it's a perfectly legal way to get into the country. That burns Dotard Donald so bad. But it's the law and we must always "enforce the law". He should be diverting money to beef up the immigration courts so asylum seekers get a hearing within 30 days instead of 3 or 4 years. Then they wouldn't even need to be released, they can have their hearing and be sent home or granted asylum.

thimk
thimk

I am livid, 3 branches of government are unwilling/unable/unready to address massive influx of illegal border invaders. We arrest,document,feed,shelter them and then release them not back to their own country of origin but within the US.

All is left to do is sit back and chronicle the decline or don a yellow vest. US of A is gone .

Sechel
Sechel

We need to stop labeling judges Obama appointed , Trump appointed or Bush appointed. Its divsive and wrongly suggests they are not interpreting the law but protecting some master. It's devisive , politicizes the bench and gives less informed readers pretense to lose confidence in our justice system. The judicial branch of government is the best functioning of the three, we don't need to destroy that.

Sechel
Sechel

I also think the ruling may be correct. I say may be because while I believe Trump acted inappropriately disregarding congress having the spending power and a fake emergency declared, the law does have a remedy that sits with the legislature they can vote it down but given it goes to the president he could once again veto. that said the judge was correct there is a high probability future judges would also rule illegal

Sechel
Sechel

it occured to me if we can't trust Obama judges then we can't trust Trump judges. Clearly Trump judges are not making legal interpretations but working for their master Donald Trump? Do you get where I'm going Mish?

Sechel
Sechel

I'l lbe more clear. Labelling the juge Obama appointee is classic ad hominem and simply a partisan attack. its garbage

conscript
conscript

Better hope some future invader decides to wait for future "funding" decisions before proceeding. Congress can't seem to function and the judiciary seems to like a new role in legislating.

BillSanDiego
BillSanDiego

The media cheered lustily when Obama stated that, "If Congress won't act, then I will." When Trump makes what is essentially the same statement, the media declares a "constitutional crisis."

TheRealist
TheRealist

One can always find a california hack judge to issue whatever ruling they want. The statutes defining the POTUS authority in this matter were written by Congress and provide a very clear and narrow scope in which the wall falls perfectly. This decision will be appealed and if upheld will go to the Supreme Court where Trump will prevail.

CrustyOldGeezer
CrustyOldGeezer

IMMIGRATION is the ABSOLUTE DUTY of the Executive Branch.

Congress has NO AUTHORITY to Thwart the PRESIDENT in his effort to CONTROL IMMIGRATION per the LAW PASSED by the legislature.

BY REFUSING to 'allow' the President to EXERCISE HIS CONSTITUTIONAL OBLIGATIONS, congress is, itself, IN VIOLATION OF THE CONSTITUTION AND THEIR OATH OF OFFICE.

The 'judge' and EVERY MEMBER of congress acting AGAINST ENFORCING THE LAWS should be arrested and CHARGED at a minimum with violating their oath of office.

And, ON CONVICTION BY A MILITARY TRIBUNAL FOR TREASON, They should face the DEATH PENALTY!

Holding people ACCOUNTABLE should end a lot of the problems in government.

Quatloo
Quatloo

I like the idea of creating additional legal precedent that weakens the power of the presidency in favor of the clear constitutional requirement that congress control the funding of the federal government. Congress needs to do its job, it has been ceding more and more of its power to the President over the years. It is inevitable that the Democrats will regain the Presidency at some point—now is a good time to get their agreement on the record that allocation of tax dollars is the responsibility of congress.

Equalizer1946
Equalizer1946

It appears as if the democrats and their Obama appointed judges care more about their agenda than they do for the needs of the country. Obama, in partocular, should be tried, convicted and hung by the neck until dead for the crime of treason.

Mish
Mish

Editor

Carl_R gets the best response award. Sechel, Shamrock, and others had good comments as well.

I understand the case for and against the Wall. I have had phone conversations with Dave Stockman about this. Neither he nor I think it will be very effective. I would not be opposed except for the way Trump went about it.

Had Trump taken the Deal offered by Schumer, we would be far better off now. That is certain. They would have had enough money to build the wall without a land grab, and they would have addressed the Dreamer issue as well.

Trump totally blew a good deal handed to him on a silver platter.

Trump only has himself to blame. He wanted everything and will get nothing.

conscript
conscript

Mish: Trump totally blew a good deal handed to him on a silver platter? Trump only has himself to blame. He wanted everything and will get nothing?

It may have been all he was offered, but the real culprit is Congress for not denying all benefits to illegals. Without the will to act, this country is not going to do well. This lack of will is going to show up in poor results domestically and in foreign policy. Other countries certainly recognize this weakness.

C. P. Roberts
C. P. Roberts

In a country where we are over run with scum bags, I mean lawyers it is no wonder that we have judges that come from a liberal system and like to make everyone believe they are law makers. One thing for sure when the reset comes there will be an abundance of gutter rats look for food.

Sechel
Sechel

MIsh , Your last paragraph in the piece could simply be summarized as Hanlon's razor

Matt3
Matt3

This is just stupid. The government has always diverted funds appropriated. Which act of Congress appropriated the money that was delivered in cash to Iran by Obama? Which bill sends money to the military to intervene overseas? I think this is the discretion of the Commander in Chief. The southern border is an invasion. Coming to steal our resources (schools, health, welfare) and destroy the country. It must stop!

TCW
TCW

Just put the already funded military on the border to defend it.

bayleaf
bayleaf

Start with enforcing e-verify, follow-up with no welfare for illegals. Wall then becomes much less of an urgent matter.

Flyoverstate
Flyoverstate

I had an interesting conversation with a friend of mine that lives approx. 100 miles north of US/Mexico border about a week ago. She stated that their town is basically controlled by Mexican Drug Cartels as it is. She works in the medical field and gets most of her information first hand. The local landowners have to avoid areas of their farms/ranches due to the drop-off areas from the Mexican mules since they are always armed. They recently caught a Syrian ISIS fighter being smuggled across and I'm going to guess he wasn't concerned with the E-Verify system if he made it through.

Carl_R
Carl_R

Another day, another ruling, this time by a "Trump-appointed Justice". The ruling was not that the action was legal, but rather that Congress has no standing to file suit. I'm going to abstain from opinion on the merit of that decision, except to ask "If this isn't the way Congress needs to stop an invalid action, what is the correct way?"