In a surprise decision late Friday, the Supreme Court struck down a lower court ruling, 5-4, against President Trump’s declaration of an emergency on the border with Mexico. The ruling clears the way for Trump to redirect $2.5 billion from the Pentagon to build his long-promised border wall. The ultimate issue is still to be decided by the courts, but Friday’s decision allows the money to be spent now. It follows a scathing report this week, from the Washington Examiner, that despite the central promise of his campaign, Trump had not built a single mile of new border fence since assuming office.
Earlier this month, a panel of judges from the Ninth Circuit Court of Appeals sided with liberal groups, and several states, in blocking the funds from being appropriated. One such suit was brought by the ACLU, on behalf of the Sierra Club and Southern Border Communities Coalition, while another came from California and 19 other states. Judge Haywood Gilliam ruled the plans were “unlawful,” and that plaintiffs were likely to win in a higher court, because such a move “violates the constitutional requirement that the Executive Branch not spend money absent an appropriation from Congress.” Gilliam added the act “does not square with fundamental separation of powers principles dating back to the earliest days of our Republic.”
The Court’s five conservative justices— including Trump appointees Neil Gorsuch and Brett Kavanaugh— ruled for the administration. Three of the Court’s liberals, Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, would have blocked the funds for now. However, Justice Stephen Breyer wrote a separate dissent, saying he would have allowed the government to pay the contractors but block actual construction of the wall. The majority ruled the government demonstrated a “sufficient showing” that the myriad plaintiffs did not have standing to sue. That issue is still to be resolved.
Taking, as he often does, to his favorite medium, Trump was euphoric. “Wow! Big VICTORY on the Wall,” he tweeted Friday. “The United States Supreme Court overruns lower court injunction, allows Southern Border Wall to proceed. Big WIN for Border Security and the Rule of Law!” Trump campaigned extensively on building a “big beautiful wall,” for which Mexico would pay. However, he has frequently come under fire from the right for seemingly reneging on both those promises. To be fair, Trump correctly points out that he has significantly upgraded some sections, from simple vehicle barriers to bollard-style fencing, for instance.
The news was taken less well by Democrats. House Speaker Nancy Pelosi called Friday night’s ruling, allowing Trump “to steal military funds to spend on a wasteful, ineffective border wall rejected by Congress,” deeply flawed. She tweeted, “Our Founders designed a democracy governed by the people— not a monarchy.” The ACLU also said it would appeal, and ask the Ninth Circuit for an expedited hearing. “This is not over,” an ACLU spokesman said in a statement. “Border communities, the environment, and our Constitution’s separation of powers will be permanently harmed should Trump get away with pillaging military funds for a xenophobic border wall Congress denied.”
Friday’s ruling, in no uncertain terms, represents one of the most significant victories, legal or otherwise, of Trump’s presidency. While not ruling on the merits, the Supreme Court cast doubt on who, if anyone, is able to challenge him in court. Having already sided with the administration, it seems unlikely this Court would rule differently, should the case reach them again. However, there’s a chance this ruling could cut both ways. The Democratic presidential candidates, too, have ambitious spending agendas, which might not make it through the normal appropriations process either. Armed with this precedent, and the one set by President Obama with the DACA program, it’s likely Democrats will try to expand executive authority even further whenever they retake the White House.