SCOTUS with Roberts front row centre

James Blundell gives his assessment

Away from the ebb and flow of Brexit on the other side of the Atlantic, the 45th President of the United States continues his tempestuous term in office, since the midterms very effectively opposed by a House of Representatives galvanised under the gavel of Nancy Pelosi. The USA has had divided Government before, but never has it effected the running to such a degree that federal workers missed out on pay packets as a result of the longest Government shutdown in history.

A consequence of this schism is Trump’s invocation of emergency powers to fund the border wall, beloved to his base and a sign of all that is wrong with his presidency to his opponents. However he has already readily admitted there will highly likely be legal moves to block funding for such the wall, necessary as Pelosi would not and will not budge for a conventional budget settlement.

Part of the border area is already fenced, and even if Trump’s ‘wall’ were to be fully constructed there would not be a solid wall stretching the 1500+ miles from Boca Chica to Tijuana. But be in no doubt, this is one of the key promises he made to his base whilst campaigning and he is determined that it should be built whatever ultimate form it takes.

This use of emergency powers begs many questions to be asked, just how far does presidential reach go ? Is there an “emergency” on the border? Will the wall be effective? The answer to these questions depends on whether you’re a Trump supporter or not. If you are part of the base, the wall is absolutely necessary. If you vote Democrat, it is not and the Democratic base will not allow the wall under its watch if it can help it. So to the US legal system we go.

Legal moves against will start in lower courts, with likely a sympathetic judge placing an injunction or some equivalent block on the funds needed for construction to proceed. Trump will appeal at this point, and up the US court system the case will proceed till it eventually arrives at the Supreme Court of the United States, or SCOTUS for short.

Now one can’t be 100% certain, but broadly liberal Justices Ginsburg, Sotomayor, Breyer and Kagan will I would have thought likely oppose Trump on the wall. Highly conservative Thomas, Alito and Trump appointed Justices Gorsuch and Kavanaugh will find no issue with the presidential order. A surprise 9-0 or 0-9 ruling (These are actually very common on more apolitical matters) could turn up but I don’t expect it to, which leaves us with “The Wall” not as a Roger Waters construction but a Chief Justice John Roberts decision.

Appointed by George W Bush in 2005, Justice Roberts is by any stretch of the definition a conservative Justice; one of the decisions SCOTUS reached last year was when he joined other conservative Justices upholding Trump’s travel ban on June 25th in a 5-4 ruling.

But he is not, and will not be seen (And by implication the entire court due to the current political makeup) as a nodding dog Trumper. He was the key Justice on a 5-4 ruling siding with the 4 liberal Justices to uphold a lower court’s refusal to allow Trump’s ban on asylum for immigrants attempting to cross the southern border illegally on December 21st 2018.

So he’ll have a decision to make when the matter of President Trump’s wall heads to SCOTUS. And likely as goes Chief Justice John Roberts, so goes the nation.

James Blundell