Potential flaws in the U.S. justice system (ACLU injunction against Trump’s wall)

Apparently, an injunction against Trump’s use of Pentagon money for his wall has been overturned. (As reported e.g. in [1]. Note that the main suit continues.) While I do not really care about the wall or its financing, I did note several things that struck me as unfortunate, especially in the current U.S. climate of judicial activism.

1. The original suit* for an injunction appears** to argue that because Congress had not authorized this use of money, Trump should not be allowed to order this use. This is, in it self, a potentially valid objection and such challenges must be allowed in order to ensure that the “checks and balances” and “separation of powers” work as intended.

   *With reservations for terminology. Possibly, e.g. “filing” or “petition” would be better.

   **Going by [1]. I have not myself studied the details, and note that such study might give a different view.

   However, the suit was not filed by Congress as the primarily (allegedly) injured party or by individual members feeling overruled. Neither was it filed by the Pentagon or someone with a high standing in the Pentagon, who might have (metaphorically speaking) chain-of-command concerns or seen an injury through other uses of the money no longer being possible. Neither was it filed by an entity that could be considered as having a strong standing in terms of e.g. protecting Congressional rights. No—it was filed by the ACLU… (Additionally, raising the suspicion that the suit was never intended to protect the division of power or whatnot, but rather followed the ACLU’s pro-immigrant and anti-Trump stance.)

   I could see a line of reasoning that a violation of e.g. “separation of powers” would infringe upon the rights of the individual citizens, making a civil liberties union a reasonable champion. However, in a situation when none of the more immediately involved parties have taken action, this strikes me as far-fetched. This especially, because the suit was filed “on behalf of the Sierra Club and Southern Border Communities Coalition” (cf. [1]). I am not aware of either entity, but the names do not point to a citizen’s rights connection (nor e.g. a “protect Congress” connection).

   There would be more reasonable other champions, e.g. the states* or the Congressmen representing the complaining citizens. (Especially, as the former might argue an own injury similar to the citizens’.)

   *There appears to be another suit that was launched by some states, which might or might not make the ACLU suit redundant in the first place. (I have not looked into the details.)

   I would raise doubts as to whether a system that allows e.g. the ACLU to file suits in cases like this* is sensible, or whether there should** be a restriction to more central parties (notably, but not exclusively, Congress and its individual members).

   *However, there might be a wide range of other cases where such a restriction is less sensible, e.g. to prevent various branches of government from colluding to violate constitutional rights. This is not the case here, because if Congress was colluding with Trump, it would have a perfectly constitutional, ethical, whatnot way of doing so—by authorizing the use.

   **Note, here and elsewhere, that I do not speak of what current law, practice, whatnot is in the U.S., nor necessarily of how it should be interpreted. Some “shoulds” in this text might very well involve non-trivial changes.

2. The original suit was placed before District Judge Haywood Gilliam—a black Obama-appointee.

   By allowing such important matters to be treated on such a low level as the District Courts, there is a considerable risk of “court shopping”, that the plaintiffs file where there is a large chance of finding a sympathetic judge.

   Here it would make great sense to have a higher and/or a more specialized court available to handle such high-level matters, both to ensure a high relevant competence and to avoid the court-shopping issue. This especially in cases, like here, where there was a great a priori likelihood that any injunction would be challenged through all instances.

   Disclaimer: I cast no aspersions on Gilliam’s expertise—I have no other knowledge of him than what is present in the linked-to texts. Similarly, while “black Obama-appointee” fits what a court-shopping ACLU might look for, I have no way of knowing that he actually was partial or biased. However, neither matters, because the risk is the problem.

3. The over-turning Supreme Court was again divided “on party lines”, making it highly likely that at least one, possibly both, side[s] again looked less to the law and more to what fit an agenda. (I have already expressed opinions on which side is more likely to be at fault in [2]—and how to do it better.)

Excursion on me and the wall:
Being neither USanian nor Mexican, the issue of the wall is fairly academic to me. However, I note in favor that: (a) Illegal* immigration is a major U.S. problem. (b) There is a very, very large difference between walls keeping people out (China) and walls keeping people in (Berlin)—garden hedge versus prison wall. Further, against that: (a) It is enormously expensive. (b) It has not convinced me of its effectiveness and efficiency. (c) It comes with negative side-effects at least with regard to the environment and the potential need to expropriate private land.

*I am willing to discuss exactly what types of immigration should be deemed illegal. However, until and unless a law change is affected, the current illegal immigration remains illegal, and this is not one of the laws that people have a plausible right to ignore or subvert. (Unlike e.g. a law preventing emigration. I have vague plans for a text on types of laws and rules where this would be addressed more in detail.)

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