Yesterday the Supreme Court removed Biden v Sierra Club (formerly known as Trump v Sierra Club) from its oral hearing calendar. This move likely ends the lengthy legal battle over the legality of former President Donald Trump’s diversion of various military construction funds to build his border wall. The court took this step at the request of the Biden Administration, with the assistance of the plaintiffs in the case. President Biden recently issued a presidential proclamation ending the diversion of funds to build border walls, which is likely to bring up the case. In principle, the Supreme Court could finally hear the case. In practice, however, there is virtually no chance they will, as neither side of the litigation wants to continue and the issue has been challenged by Biden’s reversal of Trump’s policies.
The case in question concerns the diversion of funds under Section 8005 of the National Defense Authorization Act and does not address other diversions of wall funding that Trump sought to create by declaring a “national emergency” on the southern border. The latter has been the subject of litigation in other cases, including a recent Ninth Circle judgment against the Trump administration. However, the same Biden proclamation ending the use of Section 8005 funds also revoked Trump’s declaration of emergency and prevented further efforts to use it to divert funds for the border wall. So it is almost certain that this part of the border wall dispute will also end.
Meanwhile, the new NDAA passed in December contains a useful provision that severely restricts the diversion of military construction funds to projects that have not been specifically approved by Congress. That will make it much harder for future presidents to repeat the kind of gimmicks that Trump has resorted to in these cases.
The end of the border wall litigation will also likely enact a series of valuable lower court rulings against the Trump administration, which will have the valuable effect of making it difficult for future presidents to raid the treasury to fund pet projects that do Case is not approved by Congress. The Supreme Court suspended the orders in some of the Lower Court’s cases, but did not override any of them on the merits.
Preventing interference with the power of Congress over spending is important for reasons well beyond the specific context of the Border Wall Falls. The executive branch must not usurp the power of the legislature over the wallet. As prominent Conservative DC Circuit Judge David Sentelle put it in a procedural judgment against the Trump administration in one of the other border wall cases: “[t]The separation between the executive and the ability to provide adequate resources was often cited as the first control of the president’s power in the early days. “Judge Sentelle’s decision that the House of Representatives was entitled to question the diverting of the Border Wall funding is an important precedent. This makes it easier for both Houses of Congress to question future executive interventions in their authority.
Hopefully the new administration will ensure that the lower court decisions are upheld by entering into settlement agreements with plaintiffs in these cases, as it seems to be on its way. The administration should also take steps to end significant domain cases filed against property owners in the border area and return previously convicted property (if possible).
Some important issues raised by the Border Wall litigation have not been specifically addressed in lower court judgments and are unlikely to be dealt with by the Supreme Court now. These include whether Trump was empowered to use the power of a major domain to seize property for the border wall, and whether his declaration of a “national emergency” was legal other than its use to divert construction funds.
In addition, the Border Wall episode underscores the need for legislative reforms beyond those recently passed in the recent NDAA. This includes legislation to tighten restrictions on the use of significant areas by the federal government, including reforming the compensation system to prevent future property owners from coming to their knees, as was the case with previous border wall revenue. We urgently need reforms that put an end to the president’s proclaimed “national emergencies”, as recently proposed by Libertarian MP Justin Amash and earlier Republican Senator Mike Lee.
Despite these caveats, the border wall rerouting litigation should be viewed as a qualified success for both opponents of the wall and those seeking to stem the president’s usurpation of the purchasing power of Congress. At the same time, it is sobering to realize that if the litigation had continued, things might have turned out differently, and the Supreme Court decided to override the decisions of the lower courts (a plausible, if by no means certain, potential outcome).