Washington, DC - President Trump scored a major political and security victory for the American People on July 26th, when the US Supreme Court sided with him – allowing the transfer of $2.5 billion dollars from defense programs to construction of a border wall. To some, the ruling is a surprise – it should not be.
The President sought to execute a “top-level transfer” for one-tenth of required funding to construct the southwest border wall. The wall aims to deter illegal crossers and drug traffickers, as well as helping federal law enforcement intercept them, channeling them to chokepoints.
If this seems common sense, a quick review of legal issues – resolved and left dangling– is worth a pause. The president’s view is that any president has the right to transfer funds when an unexpected contingency requires – in order to protect the American People.
Unexpected spikes during early 2019 in illegal alien crossings, drug trafficking and border threats offered a strong case for addressing the unexpected. In February, President Trump assessed the situation as a national emergency, a decision reaffirmed by record illegal inflows in March, April, May, and June.
In order to initiate wall construction, the president drew on defense-related funds, in part linking border security and national security. Again, his approach seems eminently logical, and prima facie legal.
Nevertheless, a 49-year-old Obama-appointed judge from Oakland California, Hayward Gilliam, decided that he had a better understanding of border and national security, executive power, and political imperatives of the moment. In May, Gilliam granted a preliminary injunction, barring use of those defense funds for wall construction – as the larger case progressed.
Interestingly, federal monies are often reprogramed, top level transfers often executed – they have been in all administrations, although never for border wall enhancement. Also national emergencies – more a term of art than call to arms – are also common among presidents of both parties.
Maybe it was no surprise then that another federal judge – Trevor McFadden in DC – issued a ruling one week later disagreeing with that Ninth Circuit judge. Not to be outdone, in June Judge Gilliam then fired back, issuing a permanent injunction, effectively blocking initial work on the wall in places that would clearly benefit, such as El Paso, Texas and Yuma, Arizona.
Now, to the rescue – enter the US Supreme Court. On July 26th, a 5-4 ruling made clear that the president was within his rights – that the transfer was legally permissible, national emergency ample to warrant the transfer, and permanent and preliminary injunctions by the Obama judge unsustainable.
In a phrase, God bless America’s Supreme Court and rule of law. While this ruling does not end the matter, it does open the way for construction on the southwest border wall to start. Realistically, the $2.5 billion is no more than a down payment, but it sends a message – one that deters and assists in stopping illegal border crossers and drug traffickers.
What else does this ruling mean? Several things. First, while short and divided, even liberal Justice Stephen Breyer in his dissent supported the President’s ability to initiate wall contracts by transferring funds to prepare for construction. That seems a stone’s throw from affirming the president’s broad transfer authority, a distinction without a difference, and thus a helpful hint about the final ruling.
Second, watching the President suddenly – and somewhat illogically – stopped by another Ninth Circuit Obama-appointee, then reversed by the Supreme Court, suggests that other pending Ninth Circuit rulings against this president may also be resolved in his favor, making Ninth Circuit decisions outliers. That also is promising.
Third, and most importantly, fully securing the United States’ borders – a fundamental aspect of preserving national sovereignty – can now begin. To many, it may seem absurd that a president elected in 2016 should have to wait until mid-2019 for a Supreme Court ruling to go forward. But that is rule of law, sanctity of constitutional promise – and why we strive, with unbroken stride, to assure rule of law at the border.
The Solicitor General put it best, pressing the Supreme Court to do the right thing – which they did. He wrote that plaintiffs’ “interests in hiking, bird watching and fishing in designated drug-smuggling corridors do not outweigh the harm to the public from halting the government’s efforts to construct barriers to staunch the flow of illegal narcotics across the southern border.” Indeed.
What lies ahead, of course, is resolving how to get other national leaders to understand the importance of border security, respect for sovereignty, and why protecting the nation at its perimeter is vital. History is made in small steps, but this one was in the right direction. Thank goodness!
Robert Charles is a former assistant secretary of state for President George W. Bush, former naval intelligence officer and litigator. He served in the Reagan and Bush 41 White Houses, as congressional committee counsel for five years, and wrote “Eagles and Evergreens” (2018), about influence of WWII veterans on a small Maine town. He is also National Spokesman for AMAC