We conclude ret. Judge John Wilson’s exclusive article on President Trump’s move to use armed forces resources for border protection.
The argument used by those seeking their injunction against President Trump’s move to use armed forces resources is that “… absent an order permanently enjoining the contemplated border barrier construction in the areas designated…its members ‘will suffer irreparable harm to their recreational and aesthetic interests.’ The Court agrees and finds that Plaintiffs have shown that they will suffer irreparable harm to their members’ aesthetic and recreational interests in the identified areas absent injunctive relief…Plaintiffs here provide declarations from their members detailing how Defendants’ proposed use of funds reprogrammed (from the military budget) will harm their ability to recreate in and otherwise enjoy public land along the border.”
In other words, Judge Gilliam thought it more important that members of the Sierra Club be able to recreate on public land, rather than allow the government to prevent approximately half a million people annually from crossing into the United States from Mexico (this estimate is based upon a total of 396, 579 people being apprehended in 2018 alone, with a peak of 1.64 million in 2000).
As President Trump predicted, on July 3rd, the Ninth Circuit held that the Plaintiffs had a strong chance of success, and refused to lift the stay imposed by Judge Gilliam. But as the President also predicted, this ruling was reversed by the Supreme Court on July 26th, less than one month later.
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Showing his hand, Justice Breyer (a Clinton appointee) issued a separate decision, in which he agreed in part that a stay of Judge Gilliam’s order was warranted. However, he still believed that the government should not be allowed to begin construction on the border wall – instead, he believed that the funds for construction should be frozen while the appeal proceeded through the Ninth Circuit.
Regardless of Justice Breyer’s dissent in part, the effect of the Supreme Court’s decision is to allow the Trump administration to appropriate funds originally earmarked for use by the Defense Department, to the use of the Department of Homeland Security, for the construction of the border wall.
The litigation in the California District Court, and the appeal in the Ninth Circuit will continue. But the heart of the matter was an effort to prevent the Trump administration from using funds commandeered from the military budget for the building of the border security fence along the Southern Border. By reversing the stay issued by the lower courts, the Supreme Court has authorized the government to go forward with construction of the wall. Even the New York Times had to admit that this ruling was a victory for President Trump.
While the ACLU tried to claim that this was no “big victory” for the President, the amount now available for construction as a result of the ruling of the Supreme Court is estimated at 2.5 billion dollars, a significant portion of the total 6.7 billion the Trump Administration intends to divert in its effort to build that wall.
Of particular significance is the President’s ability to read the path his National Security proclamation would take. Donald Trump knew that his opponents would seek the intervention of a court friendly to their views; he also knew that in the end, the US Supreme Court would support his actions. In the final analysis, the President’s enemies continue to underestimate his abilities, to their detriment.
Photo: Border Patrol rescuing migrant (U.S. Border Patrol photo)