Standing and The Border Wall

Horrible Outcome Plausible Opinion

So I was initially aghast at the opinion granting the government a stay in Trump v. Sierra (the emergency funding for the wall case). How could the court have done something so obviously wrong. But then I went and read the briefs and came out with a different view.

However, a key caveat here is that it’s only reasonable if Judge McFadden’s decision decision the House lacked standing to challenge is overturned on appeal. If the Supreme Court upholds that then, precedent or no, they’ve endorsed the position that the president could just start spending money without the fig lead of an excuse and no one could challenge it.

First, the court’s stay wasn’t based on whether or not the expenditure was unlawful (obviously yes IMO) but the court’s conclusion that the plaintiffs probably lacked standing. Personally, I would have voted with Bryer to allow the transfer of money but not the start of construction (thus avoiding harm to both parties) but the fact that they convinced Breyer to at least stay the injunction on the transfer of money suggests there was a pretty good argument for this point of view. And, indeed, after reading the briefs (there is only a super short opinion as it was an order) I came away thinking that this was a plausible outcome.

The most important point here is that the court has a long held rule for prudential standing that the interests of the plaintiffs raising a statutory challenge has to fall within the zone of interests the law was intended to protect. For instance, in Tax Analysts the court denied standing to an oil company seeking to challenge an IRS ruling that gave competitors tax benefits it argued were barred by law. I think it’s a stupid rule (uniform application is always an interest of the legislature).

This puts the plaintiffs in a tough spot since they are obviously not within the zone of interests protected by section 8005 (the law that allows the DoD to transfer money in an emergency) so they argue that it’s a constitutional violation of the spending clause since that means the government is spending money without congressional authorization. However, this is a dubious move as in some sense all government actions in violation of a statute are unconstitutional1. I think the fact that any claim of statutory violation could be turned into a constitutional violation to be a reducto of the supreme court’s precedent but the precedent is what it is. Indeed, there is some pretty explicit precedent in Dalton that seems to establish that when the executive makes a decision in a way that violates some constraint congress placed on that decision it doesn’t thereby become a constitutional violation (in the sense that’s relevant for standing). Specifically, the court held that

Our cases do not support the proposition that every action by the President, or by another executive official, in excess of his statutory authority is ipso facto in violation of the Constitution. On the contrary, we have often distinguished between claims of constitutional violations and claims that an official has acted in excess of his statutory authority. See, e. g., Wheeldin v. Wheeler, 373 U.S. 647, 650-652 (1963) (distinguishing between “rights which may arise under the Fourth Amendment” and “a cause of action for abuse of the [statutory] subpoena power by a federal officer”); Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 396-397 (1971) (distinguishing between “actions contrary to [a] constitutional prohibition,” and those “merely said to be in excess of the authority delegated . . . by the Congress”).

I think this distinction is kinda arbitrary and unreasonably provides the (arguably more important) rights protected by structural features of the constitution less protection than explicitly named rights. The plaintiffs try to distinguish Dalton by suggesting it applies only when the decision is ultimately relegated wholly to the discretion of the president but I think this misreads Dalton2.

The government also argues the constitutional violation would occur when the money is transferred between accounts not when it is spent. This feels too clever by half since the intent of section 8005 is obviously to prevent the expenditure of funds on projects congress disapproves of not to change DoD accounting procedures3.

Finally, even if we accept that the challenge should be considered based on a constitutional violation there is some debate over whether the zone of interests test still applies.

The government argues that it does based on an absurdly strained reading of the phrase “statutorily created” arguing that because the courts of equity are a creation of congress that any cause of action arising out of them are statutorily created. Frankly, that’s absurd (if that was true what function does “statutorily created” have?). But from a structural point of view it’s not implausible to think that for derivative constitutional claims, i.e., constitutional claims that arise because a statutory constraint is violated, that the zone of interests test still applies and that zone of interests is determined by those specified in the statute. Indeed, if one accepts the principle behind the zone of interests tests it seems like it applies just as strongly here (though if you, like me, don’t one would want to limit it’s application).

I’d note that the government’s argument that the transfer of funds here was legal is just absurd. It relies on a technical distinction between the budget item in the DoD and the funding of the very same project via DHS (which congress denied). That’s ridiculous and would let the president fund absolutely anything just by changing the names or agencies under which it was funded.


  1. I mean why can’t the competing business in Tax Analysts just allege that issuing their competitors a refund (after estimated tax payments) based on this interpretation is an expenditure without congressional authorization or just generally rely on the fact that the constitution vests legislative authority with congress to challenge any contrary administrative ruling. 
  2. Specifically, in Dalton the president’s only power was to either accept in whole or reject in whole a proposal by a commission on what military bases to close and the plaintiffs alleged the commission’s proposal was crafted in violation of law. I can’t see how the fact that the president ultimately had to approve or reject is relevant to the standing. 
  3. To steelman the argument as best I can consider this. Imagine the Trump admin had refused to say on what exact pieces of land it was planning to build the wall on before transfering the money. In that case the plaintiffs could surely not claim injury when the transfer happened (the mere fact that the government might do something isn’t enough) and surely standing can’t turn on what you believe the government plans to do with the money. However, I’d respond that in this case if the defendants would (if they otherwise would have had standing) gain standing when that money was spent (or about to be spent) in a way that injured them.