US Supreme Court appears eager to approve Trump policies

The U.S. Supreme Court appears to have become a rubber stamp to approve deeply disturbing, almost certainly illegal policies of the Trump administration. Twice in the last two months, the court took the unusual step of staying district court orders that enjoined Trump policies that were clearly against the law. The court did so even though such stays pending appeal should be rare. As Justice Sonia Sotomayor lamented: "[G]ranting a stay pending appeal should be an 'extraordinary' act. Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal. Historically, the Government has made this kind of request rarely; now it does so reflexively."

On July 26, in Trump v. Sierra Club, the court lifted an injunction that kept the Pentagon from transferring $2.5 billion in funds to build a border wall without congressional authorization. President Donald Trump's action is an unprecedented usurpation of Congress' power to control federal spending. President Trump repeatedly asked Congress to appropriate funds to build the wall along the border with Mexico that he repeatedly has advocated. Congress refused. In late 2018 and early 2019, President Trump precipitated a shutdown of the federal government rather than approve a budget without funding to build the wall. Ultimately, he gave in and a budget was approved without money to construct the wall.

President Trump then went ahead and by executive order transferred money from other parts of the Defense Department budget to build his wall. Trump's effort to build the wall without congressional approval is a grave threat to separation of powers. Under the Constitution, Congress controls the purse. No Supreme Court decision in American history ever has approved the ability of the president to circumvent these checks and balances by spending a large amount of money without congressional approval.

President Trump claimed the authority to fund building the wall under the National Emergencies Act of 1976, which actually was meant to limit the ability of the president to claim powers by declaring a national emergency. One provision says that if there is a national emergency, funds in the Defense Department budget that are not "obligated" can be used for construction projects to support the armed forces. It says: "Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize Secretaries of the military departments to undertake military construction projects, that are necessary to support such use of the armed forces."

The clear purpose of this was to ensure adequate space for military mobilization in the case of an emergency requiring a large number of troops. It is hard to imagine saying that there is an emergency within the meaning of the statute in this situation where nothing has changed. This is about Trump wanting to carry out a campaign promise, not an emergency that has suddenly arisen. Moreover, the statute is about construction projects to support the armed forces. Trump's wall is not about that at all.

Judge Haywood Gilliam, U.S. District Court for the Northern District of California, issued a preliminary injunction and the 9th U.S. Circuit Court of Appeals refused to issue a stay. But the Supreme Court, in a 5-4 ruling split along ideological lines, stayed the preliminary injunction to allow the wall to be funded pending the appeal.

This happened again last week in Barr v. East Bay Sanctuary Covenant (Sept. 11, 2019). The Trump administration announced new, dramatic restrictions on the ability of individuals to seek asylum in the United States. The new rule provides that an individual cannot seek asylum in the United States if he or she goes through another country until and unless asylum has been requested in that country and denied. This would effectively prevent those from Central America who come through Mexico from seeking asylum in the United States.

Judge Jon Tigar, in the United States District Court for the Northern District of California, granted a preliminary injunction. Judge Tigar gave three reasons why the government's policy was likely illegal. First, the court found it probable that the rule was inconsistent with the asylum statute which explicitly provides that any noncitizen "physically present in the United States or who arrives in the United States ... may apply for asylum."

Second, the United States failed to follow the proper procedure for rule-making. This was a major change in immigration law without first providing advance notice and opportunity for public comment as required by federal law. Third, the court concluded that the change in policy was so poorly justified as to likely be arbitrary and capricious under the federal Administrative Procedures Act.

Judge Tigar issued a nationwide preliminary injunction. The 9th Circuit, in a 2-1 decision, limited the injunction to just California and Arizona, concluding that the district court had not adequately justified its nationwide scope. After further briefing, Judge Tigar explained the need for a nationwide injunction and the likely illegality of the Trump policy.

But the Supreme Court once more stepped in rather than following the usual process of allowing the preliminary injunction to remain in effect while the appellate process continued. On September 11, with only Justices Sotomayor and Ginsburg dissenting, the Supreme Court stayed Judge Tigar's order. The court offered no explanation. Justice Sotomayor forcefully dissented and stated: "Once again the Executive Branch has issued a rule that seeks to upend longstanding practices regarding refugees who seek shelter from persecution. Although this Nation has long kept its doors open to refugees -- and although the stakes for asylum seekers could not be higher -- the government implemented its rule without first providing the public notice and inviting the public input generally required by law."

Neither of these issues should be close legal questions. The president cannot spend money without congressional authorization and Congress refused to fund the wall. The President cannot unilaterally change policy to dramatically restrict asylum in violation of federal law. At the very least, the appropriate recourse for the government is the appellate process. Yet, the five conservative justices stepped in to support the Trump administration's policies in both instances.

These actions raise serious questions about whether the Supreme Court will be a check on even the worst excesses of the Trump presidency or be a rubber stamp approving its policies. To this point, the answer is very discouraging. 