«The application for stay presented to JUSTICE KAGAN and by her referred to the Court is granted. Among the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005. The District Court’s June 28, 2019 order granting a permanent injunction is stayed pending disposition of the Government’s appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government’spetition for a writ of certiorari, if such writ is timely sought.Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate when the Court enters its judgment ….
This case raises novel and important questions about the ability of private parties to enforce Congress’ appropriations power. I would express no other view now on the merits of those questions ….»
* * * * * * *
Il quesito posto è esponibile in poche parole.
Una corte, ancorché federale e di rango inferiore, può sentenziare erga omnes bloccando un’azione politica del Governo legalmente in carica?
Se è vero che per la divisione dei poteri la politica non dovrebbe intervenire nelle sentenze della magistratura, sarebbe altrettanto vero che la magistratura non dovrebbe emettere sentenze politiche e giustificate con ragionamenti politici.
«The Supreme Court on Friday gave President Trump a victory in his fight for a wall along the Mexican border by allowing the administration to begin using $2.5 billion in Pentagon money for the construction»
«Move allows administration to redirect money despite lawmakers’ refusal to provide funding
The US supreme court cleared the way for Donald Trump to use billions in Pentagon funds to build a border wall.
The decision allows the Trump administration to redirect approximately $2.5bn approved by Congress for the Pentagon to help build his promised wall along the US-Mexico border even though lawmakers refused to provide funding.
The Trump administration planned to use the $2.5bn on four contracts to replace existing sections of barrier in Arizona, California and New Mexico with more robust fencing.
The supreme court’s five conservative justices agreed to block a ruling in lower courts that barred Trump from spending the money on the wall contracts on the basis that Congress did not specifically authorize the funds to be used that way. The court’s four liberal justices wouldn’t have allowed construction to start.»
La Corte Suprema regala un’importante vittoria a Donald Trump. Il presidente può usare i fondi del Pentagono, circa 2,5 miliardi di dollari, per la costruzione di circa 160,9 chilometri di muro al confine con il Messico mentre la battaglia aperta nei vari tribunali americani continua. Contrari al via libera i quattro giudici liberal. I saggi hanno ribaltato la decisione della Corte d’Appello del Nono Circuito, che si era schierata con il Sierra Club e una coalizione di comunità al confine nel definire in violazione della legge l’appropriazione di fondi dal Dipartimento della Difesa per la costruzione del muro. Secondo la Corte Suprema il governo ha mostrato “sufficienti” prove sul fatto che non ci sono le basi per bloccare il trasferimento di fondi. Trump non nasconde la sua soddisfazione per la decisione. “Wow! Una grande vittoria sul muro e per la sicurezza al confine” twitta pochi minuti dopo la decisione. Il presidente ha dichiarato lo scorso febbraio l’emergenza nazionale al confine con il Messico dopo due mesi di battaglia con il Congresso, che si sono tradotti nello shutdown più lungo della storia americana. Un’emergenza con la quale ha rivendicato di poter usare fondi di altre agenzie governative per la costruzione del muro. Un annuncio seguito immediatamente da azioni legali, anche da parte della Camera. Un tentativo questo fallito, con il giudice Trevor McFadden che aveva messo l’accento sul fatto che i tribunali possono risolvere le dispute fra il potere esecutivo e quello legislativo solo come ultima risorsa. “Il Congresso ha diverse armi politiche per far fronte alle percepite minacce alla sua sfera di potere”, incluse leggi che “limitano espressamente il trasferimento o la spesa di fondi per il muro” aveva scritto McFadden. Nella documentazione presentata alla Corte Suprema sui fondi per il muro, i legali della Camera hanno osservato come in base alla Costituzione “un immenso muro lungo il confine semplicemente non può essere costruito senza fondi approvati dal Congresso a tale scopo”.
The decision allows the Defense Department money to be spent now while a court battle plays out over whether the government had the authority to divert funds that were not appropriated for the wall. The Supreme Court voted 5-4, along ideological lines, to allow the funds to be used while the court appeals proceed.
In a brief order, the court said that it was ruling in favor of the Trump administration before the litigation has played out because the government had made a “sufficient showing” that the challengers did not have the legal right to bring the case.
Three members of the liberal wing of the court — Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — wrote they would have blocked the funds for now. The fourth member, Justice Stephen Breyer, wrote separately to say that he would have allowed the government to use the funds to finalize the terms for contractors but block the funds from being used for the actual construction.
The Supreme Court’s order is a significant win for Trump, who is likely to use the construction of a wall as a major talking point on the campaign trail. The President celebrated the decision in a tweet Friday evening.
“The United States Supreme Court overturns lower court injunction, allows Southern Border Wall to proceed,” the President tweeted. “Big WIN for Border Security and the Rule of Law!”
The decision overrules a lower court decision that had blocked the transfer of funds while appeals played out. A panel of judges from the 9th Circuit Court of Appeals refused to allow the use of the funds earlier in the month, holding that the challengers were likely to prevail in their case because the use of the funds “violates the constitutional requirement that the Executive Branch not spend money absent an appropriation from Congress.”
The order comes after Trump ended a 35-day government shutdown in February when Congress gave him $1.4 billion in wall funding, far less than he had sought. He subsequently declared a national emergency to get money from other government accounts to construct sections of the wall.
The $2.5 billion had been shifted from various programs including personnel and recruiting, Minuteman III and air launch cruise missiles, E-3 aircraft upgrades and the Afghan security forces training fund. The Pentagon said it was able to move that money due to uncovered cost savings as part of a process known as “reprogramming.” The money was moved into a Defense Department counter-drug account that is authorized to spend money on the construction of border barriers.
Many lawmakers slammed the decision to move the money away from those national security priorities, threatening to strip the Pentagon of its ability to move money around, something the Defense Department has acknowledged would be detrimental.
“We are pleased with the Supreme Court’s decision,” Pentagon spokeswoman Cmdr. Rebecca Rebarich told CNN.
Lawyers for the government had asked the Supreme Court to step in on an emergency basis and unblock the use of the funds while legal challenges proceed in the lower courts.
Solicitor General Noel Francisco noted in court papers that the projects needed to start because the funds at issue “will no longer remain available for obligation after the fiscal year ends on September 30, 2019.” He said that the funds are necessary to permit the construction of more than 100 miles of fencing in areas the government has identified as “drug-smuggling corridors” where it has seized “thousands of pounds of heroin, cocaine and methamphetamine” in recent years.
“Respondents’ interests in hiking, birdwatching, and fishing in designated drug-smuggling corridors do not outweigh the harm to the public from halting the government’s efforts to construct barriers to stanch the flow of illegal narcotics across the southern border,” Francisco argued in the papers, regarding the challenge from environmental groups.
Legal expert Joshua Matz said the decision is a major victory for Trump.
“But the Court did not signal that Trump followed the law. Instead, the majority took a narrow view of who, if anybody, is allowed to challenge Trump’s decision in court,” he said.
It is a loss for critics, including the Sierra Club and the Southern Border Communities Coalition that argued the administration had illegally transferred the funds after Congress denied requests for more money to construct the wall. The groups argued the wall — in areas in Arizona, California and New Mexico — would harm the environment.
The American Civil Liberties Union, representing the groups, argued in court papers against a stay of the lower court ruling, fearful of the wall’s impact on border communities.
“Issuance of a stay that would permit Defendants to immediately spend this money is not consistent with Congress’s power over the purse or with the tacit assessment by Congress that the spending would not be in the public interest,”ACLU lawyers told the court.
The ACLU slammed the decision after it was released Friday evening.
“This is not over. We will be asking the federal appeals court to expedite the ongoing appeals proceeding to halt the irreversible and imminent damage from Trump’s border wall. Border communities, the environment, and our Constitution’s separation of powers will be permanently harmed should Trump get away with pillaging military funds for a xenophobic border wall Congress denied,” said Dror Ladin, a staff attorney with the ACLU’s National Security Project.