Can I get standing to sue our policy of disarming soldiers on military bases because it embarrasses our image as Americans and makes us look weak in the eyes of the world? Well, if Trump legitimizes a district judge’s opinion granting a city government standing to sue the construction of border wall because of “reputation” issues, then there is quite literally no political question a court can’t decide, on any standing or none.
Yesterday, U.S. District Judge David Briones of El Paso, a Clinton appointee, ruled that Trump has no authority to reprogram $3.6 billion in military construction projects for border wall construction as part of his emergency declaration powers. The Department of Homeland Security was slated to use those funds to construct 175 miles of border wall in several border states.
Let’s put aside the fact that 10 U.S.C. § 2808 allows the president to reprogram defense funding for construction of barriers if he declares a national emergency, which he did last February. Even if the president indeed infringed upon Congress’ power of the purse, since when did the judicial branch hold the power of the purse? How in the world can a federal judge grant standing to random plaintiffs to rule upon a national question dealing with defense funding?
The “plaintiffs” in this case weren’t defense contractors or people standing to lose from the reprogramming. They were the city government of El Paso, Texas, and an agitation group named Border Network for Human Rights. How can a city government and a left-wing political group get standing to sue against transferring funds to our own national security?
As the Washington Post reports, the city “argued that the new barrier was unwanted by the community and would inflict permanent harm on its reputation as a welcoming, cross-border place.”
So now a single district judge can grant standing to a city government to rule on a national policy affecting national security at an international border and then place an “injunction” on all construction, even outside El Paso?
Of course not. No judges have such power. The problem is the administration continues to act as though they do, perpetuating this dangerous myth that there is nothing out of bounds for the courts to rule on.