California judge’s nakedly political ruling against Pentagon border funding is a great opportunity for Trump

· May 28, 2019  
    Font Size A A A
President Donald Trump
Chip Somodevilla | Getty Images

Over the weekend, we observed an annual memorial for those who sacrificed to protect our freedoms. Did they make the ultimate sacrifice for us to be ruled by a judicial oligarchy? Or so that we can preserve our constitutional republic, where judges decide individual cases and political decisions are left to the elected branches of government? In light of the latest “ruling” from a California judge, President Trump has an opportunity to answer that question once and for all.

On Friday, District Judge Haywood Gilliam of the Northern District of California issued a preliminary injunction against the Pentagon transferring $1 billion in defense funding for the construction of fencing in Yuma and El Paso. This judge has as much power to issue such an injunction over military and national border policy as I do to dictate where he sends his daughter to college, but the other branches of government refuse to remind these judges of “their impotence,” as Scalia predicted. Instead of announcing that judges have no power to grant standing over questions of military spending, the president merely responded by saying he will file an expedited appeal, thereby legitimizing this toothless order.

It is quite evident that the time has come for the executive branch to assert its power over these injunctions, as Alexander Hamilton understood it. The Supreme Court has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments,” predicted Hamilton in Federalist 78. Yet, here we are today, where even lower court rulings over our border are treated as gospel by the other branches of government.

This case would be the perfect time for the president to draw that line, for a number of reasons:

  • This is yet another case of a selected California judge attempting to halt a policy in Texas and Arizona. Everyone understands that forum-shopping is illegitimate, especially when the order pertains exclusively to areas outside of the geographical jurisdiction of that court. Moreover, another federal district judge from the federal district court in D.C., which is transparently a more appropriate forum for any lawsuit against a government policy, indicated that it makes no sense for him to get the judiciary involved in a political question. On May 23, in a parallel lawsuit in the D.C. court, Judge Trevor N. McFadden noted during oral arguments that it is “unusual territory” for the legislative branch to ask the courts to solve such a dispute with the executive branch. He indicated that he was reluctant to get involved in an “ugly dispute between the political branches.” While Judge McFadden has yet to officially rule on the case, the president should seize his likely positive ruling as an opportunity to reject forum-shopping in conflicting rulings from district judges.
  • This case goes beyond many other absurd rulings because it would be the first time judges get involved in questions of military appropriations. Are we now to say that the courts hold the power of the purse?
  • In 1996, the Northern District of California, the very court over which Gilliam presides, ruled that the president has “inherent executive authority” over denying entry to aliens. (Encuentro del Canto Popular v. Christopher, N.D. Cal. 1996). That is the purpose of this border wall.
  • This judge donated thousands to Obama and other Democrat causes. Why should his nakedly political rulings on unambiguously political questions supersede Trump’s political decisions when the president is standing before the American people for re-election largely on this question, while the judge will never face any scrutiny?
  • Putting aside the lack of jurisdiction and standing to decide such a question, the judge is incontrovertibly wrong on the merits of the question. The judge went after Trump’s strongest authority in combatting drug smuggling. 10 U.S.C. § Section 284 allows the secretary of defense, upon request from federal or state law enforcement dealing with drug trafficking, and in conjunction with the secretary of state, to “provide support for the counterdrug activities or activities to counter transnational organized crime.” Subsection b(7) allows the DOD to provide help in the form of “construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.”

Headed into this dispute, even those who were skeptical of the president’s authority to use military funds for the border in general under an emergency declaration understood that he clearly has authority under non-emergency funding to combat drug smuggling. Yet Gilliam felt that once Congress declines to fund something through regular annual appropriations, somehow the president can’t use long-standing authority under existing statute from other sources. “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,” wrote the officious political judge.

He is the one who is violating the ultimate principle of separation of powers dating back to the earliest days of our republic. That is the principle that the power of the purse is in the hands of Congress. Congress must use it or defend it against the executive branch, a power it has today. Congress can refuse to give the president any funding for his White House staff this October. But courts cannot settle political disputes.

Even sicker, the only reason why the president resorted to using these statutes is because this border crisis was impelled by California judges who “blocked” the president from using existing law that passed the Senate unanimously in 1996. 8 U.S. Code § 1225(B)(iii)(IV) requires that even legitimate asylum seekers (much less mass population transfer) “shall be detained.”

This latest radical and nakedly political lawless gesture of a judge should give Trump all the ammo he needs, not only to refuse to give force to this ruling, but to reject all the other rulings from California judges who overstepped their boundaries to cause this crisis and all its cascading effects of misery and suffering at our border.

We are a government of laws, not of men, most certainly not the unelected advocates of illegal immigration.


Find out what the mainstream media won’t tell you about President Trump and his administration.

Sign up to get BlazeTV host Jon Miller’s free White House Brief delivered right to your inbox once a day.

* indicates required


Author: Daniel Horowitz

Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.