Can I get standing to sue our policy of disarming soldiers on military bases because it embarrasses our image as Americans and makes us look weak in the eyes of the world? Well, if Trump legitimizes a district judge’s opinion granting a city government standing to sue the construction of border wall because of “reputation” issues, then there is quite literally no political question a court can’t decide, on any standing or none.
Yesterday, U.S. District Judge David Briones of El Paso, a Clinton appointee, ruled that Trump has no authority to reprogram $3.6 billion in military construction projects for border wall construction as part of his emergency declaration powers. The Department of Homeland Security was slated to use those funds to construct 175 miles of border wall in several border states.
Let’s put aside the fact that 10 U.S.C. § 2808 allows the president to reprogram defense funding for construction of barriers if he declares a national emergency, which he did last February. Even if the president indeed infringed upon Congress’ power of the purse, since when did the judicial branch hold the power of the purse? How in the world can a federal judge grant standing to random plaintiffs to rule upon a national question dealing with defense funding?
The “plaintiffs” in this case weren’t defense contractors or people standing to lose from the reprogramming. They were the city government of El Paso, Texas, and an agitation group named Border Network for Human Rights. How can a city government and a left-wing political group get standing to sue against transferring funds to our own national security?
As the Washington Post reports, the city “argued that the new barrier was unwanted by the community and would inflict permanent harm on its reputation as a welcoming, cross-border place.”
So now a single district judge can grant standing to a city government to rule on a national policy affecting national security at an international border and then place an “injunction” on all construction, even outside El Paso?
Of course not. No judges have such power. The problem is the administration continues to act as though they do, perpetuating this dangerous myth that there is nothing out of bounds for the courts to rule on.
Simply saying that the administration will appeal the decision is not good enough. This was already appealed in a similar case. After a California judge placed an injunction on the first $2.5 billion of reprogrammed funding, the Supreme Court stayed the injunction. Yet, as we’ve seen in the growing trend of lower courts ignoring the Supreme Court, that didn’t stop the El Paso judge from issuing a similar injunction.
It’s true that the California case involved the $2.5 billion in non-emergency funding to combat drug smuggling, which might be a stronger authority for the president than the $3.6 billion in emergency military construction funding, but that doesn’t matter. The reason the Supreme Court stayed the injunction is because, regardless of whether the president was correct in using the funding, courts have no power to grant standing to outside organizations to sue against a border wall. The case in California involved the Sierra Club and a group named Southern Border Communities Coalition. The reasons why these groups do not have standing applied to the El Paso case as well. “The government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005,” stated the 5-4 majority SCOTUS order in July.
Yet liberal judges will just come back in identical cases and start the injunction process all over again. At some point, the Trump administration needs to make the point that if the Supreme Court won’t effectively defend its own decisions from the lower courts, the other branches of government will.
Going forward, if the administration is going to salvage some semblance of border security, it has two choices: Either refuse to give force to this lawless ruling, or engage in a budget fight with Democrats and refuse to sign a funding bill without border wall appropriations. One of the two needs to take place. Otherwise, the foremost promise of Trump’s presidency goes down the tubes.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.