Note: this piece was originally published in Reason, and was written by Checks & Balances member Ilya Somin.
Earlier today, as Jonathan Adler notes, the Supreme Court decided to hear Trump v. Sierra Club, one of several cases involving challenges to President Trump’s diversion of various funds to build his border wall. The Ninth Circuit court decision in this particular case addresses Trump’s efforts to Section 8005 of the 2019 Department of Defense Appropriations Act to use some $2.5 billion in military construction funds to build parts of the wall. It should not be confused with a similar case (also decided by the Ninth Circuit, and involving most of the same parties), which ruled against Trump’s efforts to divert military construction funds by using 10 USC Section 2808, one of a number of powers triggered by Trump’s declaration of a “national emergency” at the southern border. Unlike the Section 2808 case, the current case does not involve the crucial issue of the scope of presidential “emergency” powers.
As a general rule, a Supreme Court decision to hear a case is not good news for whichever party prevailed in the lower courts (in this case the plaintiffs opposing the border wall). It is certainly possible that the conservative majority in the Supreme Court decided to take the case because they want to overrule the Ninth Circuit on the merits—i.e. conclude that Trump had the authority to use Section 8005 to divert the funds. But other scenarios are also possible.
Continue reading at Reason.