Posted on May 24 2019
What else would I do on a Friday Night 10PM-ish Local DC time? Why yes isn’t it totally normal to pull down a big breaking Judicial Bench Slap. Isn’t that what an average person does on a Friday-Funday night? I suppose I could just simply tweet out an update to my February 2019 Wall Thread. Oh wait I can’t. Because Twitter.
Some background, February 19, 2019, Sierra Club and Southern Border Communities Coalition filed suit against the Trump Administration. This particular suit had me at DOD, DHS, US Treasury and Trump. Unlike other suit this one was uniquely distinct.
On February 15, 2019 Trump declared:
Presidential Proclamation on Declaring a National Emergency
Concerning the Southern Border of the United States
Keep in mind this was after the Trump-Shutdown (technically his 4th), instead of working with Congress to address the immigration issues, Trump decided that co-equal branches of Government is for losers. So he decided to issue a National Emergency
NOW, THEREFORE, I, DONALD J. TRUMP, by the authority vested in me by the Constitution and the laws of the United States of America, including sections 201 and 301 of the National Emergencies Act (50 U.S.C. 1601 et seq.), hereby declare that a national emergency exists at the southern border of the United States, and that section 12302 of title 10, United States Code, is invoked and made available, according to its terms, to the Secretaries of the military departments concerned, subject to the direction of the Secretary of Defense in the case of the Secretaries of the Army, Navy, and Air Force.
To provide additional authority to the Department of Defense to support the Federal Government’s response to the emergency at the southern border, I hereby declare that this emergency requires use of the Armed Forces and, in accordance with section 301 of the National Emergencies Act (50 U.S.C. 1631), that the construction authority provided in section 2808 of title 10, United States Code, is invoked and made available, according to its terms, to the Secretary of Defense and, at the discretion of the Secretary of Defense, to the Secretaries of the military departments. I hereby direct as follows:
See January 2019 National Emergency entry, I walked you through why we should be concerned that Trump is aggressively usurping Congressional Power and shredding our Constitution. See my previous Government Shutdown write up, where I explained Trump turned down the Rounda-King Amendment that would have given Trump $25B for his stupid wall. But no like a petulant child Trump said “I’ll take the heat, I’ll shut the Government Down” again the 2018/2019 Trump-Shutdown was an expected outcome by a “president” who doesn’t understand the appropriation and legislative process. Although he might understand it, he just doesn’t respect it.
Within a few short days of King-Trump declaring his (self created) National Emergency, the SIERRA CLUB and SOUTHERN BORDER COMMUNITIES COALITION filed this Complaint in the Northern District of California. The complaint was pretty straight forward.
And to be clear there wasn’t an actual emergency but regressive and calculated actions by the current administration did in fact accelerate capacity and it had the ripple effect just as Trump intended. Cut off aid. Limit Asylum cases. Institute other punitive measures to make refugees and asylees extraordinary difficult to emigrate.
Setting aside the anti-commandeering issues and separation of power issues...this complaint was different then any other that’s been filed during the Trump Administration. Which you should have known the moment Trump proclaimed his fake national emergency. Because Trump opted to use the DOD “un-obligated” funds this set up a pretty interesting fight. Like clash of the Titans meets DC-ThunderDome kind of fight. Our founding fathers when contemplating our Government, for the people, by the people. They had the foresight to build-in checks and balances in the system. Part of that is the coequal branches of Government.
Meaning when you have two branches of Government in tug of war. There’s a reason our founding fathers gave the “exclusive” power of the purse to Congress, the Power of the Sword to the Executive and the Judiciary decides who’s right and who’s wrong.
Although one could argue our founding fathers could never contemplated a president like Don-the-Con Trump. An imperial-president, who’s unable to build a coalition and “goes at it alone” because “I alone can fix it’. I would submit to you that argument isn’t exactly persuasive. While I’ll concede that some of our institutions are being stress tested, I have unwavering confidence in the Judiciary.
Preliminary Injunction Granted (in part)
At 6:29PM PST, United States District Judge
The Court’s Conclusion:
Congress’s “absolute” control over federal expenditures—even when that control may frustrate the desires of the Executive Branch regarding initiatives it views as important—is not a bug in our constitutional system. It is a feature of that system, and an essential one...The Appropriations Clause is “a bulwark of the Constitution’s separation of powers among the three branches of the National Government,” and is “particularly important as a restraint on Executive Branch officers.”
In short, the position that when Congress declines the Executive’s request to appropriate funds, the Executive nonetheless may simply find a way to spend those funds “without Congress” does not square with fundamental separation of powers principles dating back to the
earliest days of our Republic...
I should admit I haven’t read the full Order & Memorandum but I can tell you that I personally enjoy a well written Opinion. Especially one that references Youngstown (if only I could retweet those threads)
Justice Frankfurter wrote in 1952 that “[i]t is not a pleasant judicial duty to find that the President has exceeded his powers,” Youngstown, 343 U.S. at 614 (Frankfurter, J., concurring), and that remains no less true today.
But “if there is a separation-of-powers concern here, it is between the President and Congress, a boundary that [courts] are sometimes called upon to enforce.” E. Bay Sanctuary Covenant, 909 F.3d at 1250; see also Ctr. for Biological Diversity v. Mattis, 868 F.3d 803, 825–26 (9th Cir. 2017
The following paragraphs are the most important:
Because the Court has found that Plaintiffs are likely to show that Defendants’ actions exceeded their statutory authority, and that irreparable harm will result from those actions, a preliminary injunction must issue pending a resolution of the merits of the case (emphasis added)
the Court hereby GRANTS IN PART and DENIES IN PART WITHOUT PREJUDICE Plaintiffs’ motion for a preliminary injunction.
The terms of the injunction are as follows:
Defendants Patrick M. Shanahan, in his official capacity as Acting Secretary of Defense, Kevin K. McAleenan, in his official capacity as Acting Secretary of Homeland Security, Steven T. Mnuchin, in his official capacity as Secretary of the Department of the Treasury, and all persons acting under their direction, are enjoined from taking any action to construct a border barrier in the areas Defendants have identified as Yuma Sector Project 1 and El Paso Sector Project 1 using funds reprogrammed by DoD under Section 8005 of the Department of Defense Appropriations Act, 2019.
Here’s an OpenSource Link to the Judge’s 56 page order
For the sake of expediency I quickly whipsawed through the Order. Which is uncharacteristic of me, as I tend to take the time to read the documents I tweet(ed) and blog about but it seemed important to get the word out that the Trump Administration had a pretty important defeat. In fact I’d argue that judicially speaking, Trump had a terrible week. It was glorious to see the Judicial Branch hold the line and rule of law.
On page 11, lines 8 thru 24, we find out that on May 8, 2019 Acting Defense Secretary Shanahan, testified before the Senate Arms Services Committee. And the timetable he proffered to the Senate.
I personally think Shananhan deliberately mislead the Senate...and should be called back. Specifically I think the House Armed Services and DHS Committee should demand an explanation from the DOD why they awarded a multimillion dollar contract to Fisher Sand & Gravel. As further explained in the subsequent paragraphs with nearly half a dozen separate Criminal & Civil Federal Complaints...
Defendant Shanahan estimated that “sixty-three new miles will come online” from these contracts in the next six months, or “half a mile a day.”
The same day, DoD reported selecting twelve companies to compete for up to $5 billion worth of border barrier construction contracts...
Dirty Dirty Dirty...
Here are my receipts that I would submit show: Trump is running a Con, Trump then rewards his Senate Sycophants (Sen Cramer, R ND), the Army Corp of Engineers estimated time to complete <6 miles of Trump’s stupid bleeping wall >22 months.
Sen Cramer (R-ND) Pay to Play
The subtext here is: Donald, I’m your biggest fan. MAGA baby, I really think you should fire the Army Corp of Engineers & then hire Companies from my State (one of which I have a personal stake in) and have them build you wall. And what ever you do, do not ask Sen Hoeven about the Feb/March 2019 Army Corp of Engineers Report that showed the documented rate of wall building is about 1.72 miles per month. (oh shittlestix I should not have typed that) xo Kev “your biggest Fan”
Before President Trump’s national emergency declaration, the Army Corp of Engineers had been contracted to build physical barriers along the southern border. Their work so far can generously be characterized as overpriced and inefficient.
“spoke with Secretary Nielsen about what I can do—whether it be by public statement, private conversation, or legislative action—to ensure the wall is built on time and under budget, which is what the President, Congress, and the American people rightfully expect and deserve. Given the public and private interest and resources already available, there is no reason the wall can’t be completed quickly and correctly.”
As detailed in lines 20 thru 22 (page 11) the day after the Acting DoD Secretary testified before the Senate Committee, the DOD announced a $5 Billion in contract awards for “Trump’s Wall”.
Awardee: Fisher Sand & Gravel, Dickinson, North Dakota (award Number: W9126G-19-D-0027), as the Washington Post, Josh Dawsey detailed in his excellent reporting, this is in fact cronyism that’s become acceptable and pretty much SOP for Trump’s MAGA Swamp..but I’d like to add on to the Post’s excellent reporting.
Fisher Sand & Gravel has been repeatedly fined by various Federal Enforcement Agencies (IRS, EPA, DOL, DOJ)
2013 the EPA fined them $130,000, Docket No. CWA 309(a)-10-014
Wadsworth Brothers Construction Company, Inc. v. Fisher Sand & Gravel Co. 1:12-cv-00062-DLH-CSM (you might hit a LN paywall)
Fisher Sand & Gravel In April 2011, paid $312,000 in civil fines.
United States v. Fisher 1:08-cr-00026, original Indictment,
2009 DOJ-OPA Tax Fraud, Michael Fisher, CEO of Fisher Sand & Gravel pleads guilty. This UVA Law Library Link will take you to the Deferred Prosecution Agreement between the DOJ, IRS & Fisher Sand and Gravel:
Not to be a stickler for Government ethics and fiscal responsibility: excuse me, why are our TAX dollars going to pay Fisher Sand & Gravel to build Trump’s big beautiful wall, since Mexico “will pay for it”? Also call me old fashioned but it seems clinically insane that any of our Tax Dollars are going to this Company.
According to this December 14, 2009 DOJ-OPA Release No 09-1337 in late 2009 Fisher Sand and Gravel was ordered to pay the IRS for back taxes, fines and penalties. Literally their CEO, Michael Fisher was sentenced to 37 months in federal prison, while the two other Fisher Sand & Gravel Executives were sentenced to home confinement.
With respect to the Judge’s ruling. Remember that incredibly long twitter thread and accompanying blog entry?
Where I pointed out the relevant sections of the GAO report & the Omnibus Bill?
GOA report noted (based on data given to the, by DHS) “during fiscal year 2017, Customs Border Control Agents apprehended 304,000 illegal entrants, a decrease from 409,000 in fiscal year 2016. Essentially a 26% REDUCTION in illegal immigrants apprehended”.
The GAO report goes on to conclude: ..”funding for barrier planning and design, but limited use of funds for primary barrier construction to previously deployed fencing designs” in simpler terms since the Trump Administration had yet to approve the $20M as in million prototype designs for his big, beautiful wall, Trump pivoted to “artisanal steel slats”. Not to state the obvious but situational awareness would require our CPB agent’s to see through any type of barrier to see “the otherside” hence the scam that is Trump’s wall is about as believable as “Mexico will pay for it”. As the FOIA’s documents posted below “Mexico would be gravely offended” so then Trump,pulls his incredibly predictable switch and bait, Mexico will pay for it via NAFTA 2.0.
Well. Well. Well. It’s almost as if someone had explained in March & December of 2018 that Trump’s lies about the Southern Boarder and Misappropriation of DOD, specifically drug-interdiction wasn’t permissible, at all.
Page 32 then goes on to explain how the Defendants arguments continued to change but their inability to provide any data to support their authority to transfer funds Congress has appropriated for our Nation’s Defense could (impermissibly) be almost unilaterally moved to fund Trump’s wall. Predictably the Trump Administration attempted to argue that this Executive Action was “un-reviewable” by the Courts. When that fatally flawed argument failed, the Trump Administration pivoted to “the wall will prevent drugs from entering our Country” - which is laughably false. Nearly 70% of all drugs that come in to America come in via ports of entries. DHS has repeatedly asked for advanced X-ray machines to be installed at ALL Ports of Entry, to no avail:
Congress’s affirmative appropriation of funds in the CAA to DHS constitutes a “denial” of appropriations to DoD’s “counter-drug activities in furtherance of DoD’s mission under [Section] 284.” Opp. at 16. In their view, “the item” for which funds are requested, for present purposes, is counter drug activities under Section 284. Id.
And Defendants maintain that “nothing in the DHS appropriations statute indicates that Congress ‘denied’ a request to fund DoD’s statutorily authorized counter-drug activities, which expressly include fence construction.” Id. In other words, even though DoD’s counter-drug authority under Section 284 is merely a pass-through vessel for Defendants to funnel money to construct a border barrier that will be turned over to DHS...Defendants argue that the Court should only consider whether Congress denied funding to DoD.
Read the footnote on page 31. My educated guess is the Judge included that as a way to lock in the series of events. Specifically what the Trump Administration told the Court versus what the Trump Administration actually did. I personally think the Congressional Democrats should call a public hearing and start asking for documents. In my business footnotes tend to be where the subtext and real action is...
No really READ the footnote on page 31 - there is some there there.
I suppose we should address the rationale, the Court found that the DOD re-allocation of the “earmarked” drug interdiction program, the Plaintiffs have a likelihood of success and the Judge ruled that the Trump administration engaged in unlawful misappropriation of funds approved by Congress. See page 33
I also suspect the reason this Court heavily relied on Youngstown, in my industry we know that is one of the landmark cases. A true demarcation of Separation of Power and affirmed Congress’ Constitutional Authority over the purse.
SCOTUS held President Truman, exceeded his authority. More precisely in Youngstown, SCOTUS held:
In a 6-to-3 decision, the Court held that the President did not have the authority to issue such an order. The Court found that there was no congressional statute that authorized the President to take possession of private property. The Court also held that the President's military power as Commander in Chief of the Armed Forces did not extend to labor disputes. The Court argued that "the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker."
But oh no those twitter threads are gone. As are the countless hours of my pro bono work & research. Because apparently educating some on twitter with facts and actual documents is a violation of Twitter’s Terms of Service. Yet actual disinformation agents of chaos, hackers and straight up white supremacist are allowed to run rampant. This entire week has been a slap in the face. Yet here I am still chugging along even though Twitter and their Trolls silenced my voice on their platform.
At any rate I need to take a break from the internet and this blog. This week has been a mixture of karma, vindication, anger and frustration. Between Calk, Avenatti, Assange and this Order I think it’s best if I disengage until I can get to a better head space. Mostly frustration because I’m human and I’m fed up with being the human twitter troll piñata.
For the following reason set forth in above paragraphs, SpicyFiles out for a few days... remember make good choices, ignore the twitter trolls and always default to self care.
While you're here, throw us a bone.
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