Posted on February 20, 2019

Has the Supreme Court Already Decided the Wall Case?

Aziz Huq, Politico, February 19, 2019


{snip} What if following that script means these suits challenging the emergency as beyond the president’s fiscal powers will do nothing to enlarge Congress’ control over the federal purse? What if instead it has the main effect of giving Trump an electoral boost in 2020?


That earlier case is the challenge to Trump’s travel ban. Like the wall, the travel ban fulfilled a 2016 campaign promise. Like the wall, the ban on entry by citizens from Muslim-majority nations was challenged within days. If the legal challenges to the wall anticipated in Trump’s Friday Rose Garden speech arrived quicker, it simply shows that all concerned have settled comfortably into a predictable dance of provocation and resistance. The travel ban litigation ended in a 5-4 decision in the U.S. Supreme Court, upholding the policy mere months before Americans returned to the polls in 2018.

The parallels between the travel ban and the wall cases are too precise and too plural to be ignored. {snip}

To begin with, both the travel ban and emergency funding for the wall rest on Trump’s reliance upon a very broad delegation in a federal statute. {snip}

Not only is the president’s legal theory in the two cases alike, the arguments against the president’s two policies also run along parallel tracks. {snip}

First, in both cases there also are powerful arguments that Congress did not anticipate the kind of policy Trump has pursued — a blunderbuss border control bearing down hardest on non-white migrants. {snip}

Second, in both cases the president’s own words about his reasons for declaring an emergency — his admission that the declaration was a strategic political decision and thus not necessarily brought on by a real emergency — and the data released by his own administration fatally undermine the factual justifications for emergency, unilateral action. {snip}


[The Supreme Court] would start by observing that the statutory basis for the wall “exudes deference to the president in every clause.” It would build on this by asserting that “the admission and exclusion of foreign nationals” is a “fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.”

{snip} In effect, the court here said that it would refuse to take Trump at his word, and instead ignore evidence of either flawed motive or insufficient justifications. English law had a Latin maxim that nicely captures the court’s thought here: “rex non potest peccare,” or the king can do no wrong.


In this manner, the Supreme Court’s opinion from last year can be applied point for point to the statutory and constitutional arguments against the wall emergency proclamation. The expected result is that the president prevails. The Kavanaugh confirmation only makes this more likely given the new justice’s record of voting in favor of expansive presidential powers.

{snip} A court that aggressively evades real opportunities to parry presidential lawlessness will once again look away. Racial and ethnic minorities, never winners in the Roberts Court, will again lose out.


{snip} The Supreme Court, if it follows the script set by the Travel Ban case, may well let him pursue his immigration policies unhindered.

There’s another potential upside for him: The timing of the judicial review will likely ensure that the wall case, like the travel ban case, immediately precedes the 2020 election. {snip} The travel ban was supported by a “clear majority” of Americans. And though the wall lacks similar support, a decision validating it may well be a boon to candidate Trump in the crucial months before the 2020 poll. {snip}