All eyes are on impeachment this week. But President Donald Trump’s border wall is churning up a second constitutional crisis all by itself on the sidelines.
The wall is not the issue. Instead, it is the extreme steps taken to undercut Congress’ constitutional power over spending and the response thus far by the judicial branch, which has run for cover in a manner that strains credibility.
ndeed, since the wall fight moved to the federal courts last year, it often has seemed as political as it was in Congress. From California to Texas to blocks from the Capitol, thousands of pages of legal briefs and opinions have been filed in the past 12 months. But with a troubling consistency, the outcomes match whatever political party chose the judge making the decision.
To be sure, it’s early enough that the sample of judges is limited. But the sole exception — Richard Clifton, a senior judge on the 9th Circuit U.S. Court of Appeals — seems a reminder of a lost time: a jurist nominated by a Republican president, George W. Bush, approved by the Senate 98-0 and willing now to break party lines and stand up to Trump.
More often, the record shows a fresh crop of judges nominated by Trump has stepped in for the president, either to stay injunctions or deny standing to those challenging his unprecedented use of emergency powers to get around Congress.
The wall’s opponents have gained traction only when they appear before at least one Democratic-appointed judge. That explains the focus now on the 9th Circuit, where a panel of three judges — including two Democratic appointees — has agreed to expedite hearings on a suit brought by the American Civil Liberties Union on behalf of the Sierra Club.
But those oral arguments won’t be heard until early March and the president seems emboldened to move billions more to the wall while the window is open.