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Misleading Headlines, as Trump Changes Federal Judiciary

trump serious judiciary headlines federalAs the presidential election heats up, anti-Trump media are going into overdrive.  Headlines are increasingly shrill – and inaccurate.  We know it, but examples make the point: Stay alert.

From regular misquotes and twisted inferences to blatant anti-Trump reporting, examples of media bias are growing.  Here is one from this week – in need of correction:  On June 26, CBS pushed the headline “Trump lacked authority to use military funds for border wall construction, court rules.”  In other words, Trump loses.

Is that right? Not quite – not by a long shot.  Here is what really happened.  The left-leaning 9th Circuit US Court of Appeals, in a 2-1 decision, reverted to form. Two Clinton-appointed judges outflanked a thoughtful Trump judge, to produce a snappy, unreasoned holding.

What did it say?  It said Trump was constitutionally disallowed from moving $2.5 billion dollars in Defense funds to the southern border wall.  They held Congress had not expressly given the President power to transfer that money, so no dice.  Well, here we go again.

In truth, every President in modern times has transferred similar funds – whether by top-level OMB transfer or reprogramming within and across departments, including Obama and Clinton. See:   www.everycrsreport.com/reports/R43098.html#_Toc360781176.  The process is hardly novel or unconstitutional.  That said, the 9th Circuit ruling got a big headline.

While statutory limitations can appear in an authorization bill, they can also appear in appropriations language. Often authorization bills lag appropriations – sometimes by years.  The money still gets spent and is often transferred. That bit is not analyzed by the 9th Circuit.

Moreover, a President possesses wide latitude in assuring national security, under Article II, section 1, clause 1.  He is permitted discretion in protecting our country as Commander in Chief, even along the southern border.  None of this is reported, nor discussed by the 9th Circuit.

The latest ruling seems more absurd than usual since Congress has been passing multitrillion-dollar bills. The $2.5 billion transfer is the cost of Congress’s salaries, staff, travel, and franking.

So, why another anti-Trump ruling – especially after prior reversals?  To empower critics, of course.  Says CBS: “The decision by the 9th Circuit Court of Appeals is a setback for Mr. Trump, who has been vocal in his commitment to follow through on a campaign pledge of erecting a wall at the southern border to deter unauthorized crossings and drug smuggling.”

CBS rebukes Trump for a “rallying cry” to “crack down on illegal immigration,” says he did not get the “Mexican government to finance the ambitious project,” has produced “little success,” and two years ago caused “the longest shutdown in American history.” Hmmm.

Truth is elsewhere.  More than 200 miles of wall are built, Mexican trade negotiations were successful, “shutdown” was partial and short, delayed federal pay quickly recouped.

Finally, the article does not bother to say the ruling will likely be reversed. Justice will file an appeal to the Supreme Court, which ritually flips 9th Circuit rulings, including one last summer blocking the same amount of money – $2.5 billion – to let Trump transfer from defense to wall.

Reality is not in headlines. More than 80 percent of 9th Circuit cases are reversed.  This one likely will be.  The US Court of Appeals for 5th Circuit, relying on last year’s Supreme Court ruling, gave Trump transfer authority for $3.6 billion from defense to the wall in January 2020.

Big picture, Trump is winning.  America has 870 federal judges. The Senate has confirmed 200 Trump nominees to the federal bench, restoring rationality by seating non-activist judges.  At present, there are 73 added vacancies, 44 nominees pending, 12 awaiting a vote.  So, the tide is turning – slowly, but turning.

The latest 9th Circuit anti-Trump ruling, like headlines trumpeting other losses, is election-year noise.  If the ruling has meaning, it is this: Trump scares them.  He is re-seeding the federal bench, and those who wish to see the trend continue should stay focused on November.

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