Virginia Armstrong, Ph.D., National Chairman, Eagle Forum’s Court Watch
President, Blackstone Institute
June 12, 2019
President Trump’s border wall plans moved farther up the federal judicial court hierarchy as the U.S. House of Representatives on June 10 appealed the issue to the U.S. Court of Appeals for the District of Columbia. The House challenge was denied in early June by D.C.-based District Court Judge Trevor McFadden, who gave approval to wall construction. But in late May suits against two stretches of wall construction, in Arizona and Texas, were upheld by Oakland-based U.S. District Judge Haywood Gilliam in a case filed by two citizen groups. Defense Department counter-drug funding would have been transferred to the wall project in Gilliam’s case.
These decisions highlight major aspects of federal judicial activity of significance far beyond the building of a border wall: (1) the election of a President may well have huge ramifications on the outcome of judicial proceedings’ (Gilliam was appointed by Obama, McFadden by Trump). (2) Basic principles of law may also be greatly impacted: (a) “standing to sue,” a major determinant of which parties are granted court hearings are which are denied, is a critical difference between liberal/reconstructionist judges and conservative/restraint judges – the former, typified by Gilliam’s decision, broadly interprets “standing” allowing more litigants, often with liberal agendas, access to court; McFadden’s decisions reflect the constitutionalist concept of limited standing with hearings granted only to litigants with clear Constitutional grounds:; (b) “separation of power” critical to our republic was overridden by McFadden, giving the legislative branch authority over the executive branch’s constitutionally-delegated powers in matters of defense, “national emergencies,” etc., whereas McFadden’s decision respects such Presidential powers; (c) maintaining consistency in federal court decisions is much more difficult and draining on government resources when judges are appointed by presidents of substantially different philosophies, as happened here at the District Court level.
The decision of the D.C. Court of Appeals, to whom the cases have now been appealed, will be especially noteworthy because it recently lost one of its members, Brett Kavanaugh, to the U.S. Supreme Court. Several other federal courts also face litigation concerning Trump’s use of executive powers.