In a column for the New York Times, longtime Supreme Court correspondent Linda Greenhouse called out the specious legal reasoning used by five justices to rule in favor of Donald Trump which lifted a stay on his shifting funds to build his border wall between Mexico and the U.S.
Greenhouse, the Pulitzer Prize-winning journalist and Yale Law School lecturer who has covered the court for over 30 years, began by pointing out that the president has on more than one occasion said with great confidence that he would take challenges to his authority all the way to the Supreme Court -- and for good reason.
While the media was consumed with Trump's racist attacks on Rep. Elijah Cummings (D-MD) last week, by a 5-4 decision the court lifted a lower court stay on the transfer that conflicts with high court legal precedents.
As she explains, "The court did this in response to a request the administration styled as an emergency. The court acted without a public hearing, without a signed opinion and over the dissenting votes of the four liberal justices. As a result, although the case is still on appeal to a federal appeals court, the administration can now sign contracts for 100 miles of a 30-foot-high steel wall in five locations where Congress prohibited construction, using money that Congress refused to allocate for that purpose."
"It’s worth unpacking the statutory issue to understand the constitutional dimensions of a case that does not, on the surface, present a constitutional question. Section 8005 of the Defense Department appropriations act did authorize some transfers but set two requirements that must be met: the move must be in response to “unforeseen military requirements,” and can occur “in no case where the item for which funds are requested has been denied by Congress,” she elaborated. "The United States Court of Appeals for the Ninth Circuit agreed with that interpretation and strongly suggested that without statutory authority, the administration was venturing into unconstitutional territory. "
Greenhouse points out that the Ninth Circuit backed up their decision by citing Article I of the Constitution, Section 9, Clause 7 which states “No money shall be drawn from the Treasury, but in consequence of appropriations made by law.”
With the Supreme Court tossing that aside, she declares that the court is ignoring the separation of powers enumerated in the Constitution, which she found to be curious, or, as she put it: "There is much that’s highly questionable about the court’s behavior in this case."
As she explains, "When a court confronts the question of whether to grant a stay, the issue comes down to what courts call a “balance of the equities.” Which side will suffer the most from a suspension of the judgment, the winning side or the side that failed to make its case and wants another chance? Which side is most likely to suffer irreparable injury? In this case, the Sierra Club argued that if construction goes ahead, the damage will be done; the government will have won on the ground even if it ultimately loses in court."
Pointing out that the groups attempting to stop Trump had a strong case, Greenhouse found the decision not only sketchy, but the timing of it suspicious.
"What’s most troubling about the court’s action is that even if five justices found the administration’s argument attractive or even compelling, the court’s unconditional surrender (even issuing the stay on the precise date the administration requested, July 26, and not a day later) was simply unnecessary," she wrote before noting that Justice Stephen Breyer had offered up a compromise allowing the government to start accepting bids on construction before for the fiscal year deadline while keeping the injunction in place.
"I’m assuming that his three liberal colleagues, Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, would have agreed to this common-sense compromise if the offer could have peeled off a necessary fifth vote from the other side," Greenhouse wrote, before concluding, "That no fifth vote was forthcoming, that the majority rushed to give the administration everything it asked for, tells us all we need to know about the Supreme Court at this moment — and sadly, frighteningly, tells President Trump the same thing."
You can read more of her reasoning here.