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Could Scalia Thwart Trump's Agenda?

By Casey C. Sullivan, Esq. on January 27, 2017 | Last updated on March 21, 2019

Justice Scalia is no longer on the Supreme Court, but his influence certainly remains. And President Trump seems committed to continuing, even extending, that legacy. He's spoken of appointing justices "very much in the mold of Justice Scalia," for example, and his shortlist is full of Scalia-like originalists and textualists.

But when it comes to Trump's signature issue, that "big, beautiful wall" meant to offset the Statue of Liberty, one of Justice Scalia's opinions might stand in Trump's way.

A Specter Is Haunting the Supreme Court

Daniel Hemel, Jonathan Masur, and Eric Posner, law profs at the University of Chicago all, recently took to the New York Times to explain how Scalia's legacy might be a barrier to Trump's wall. At issue is Justice Scalia's 2015 opinion in Michigan v. EPA, a decision that struck down federal regulations on mercury and other toxic emissions from power plants.

What do Clean Air Act regulations have to do with border walls? The EPA had promulgated the regs under its authority to implement "appropriate and necessary" air pollution rules under the Clean Air Act. But the EPA had declined to analyze the exact costs of the regulations, putting them off for later.

That, Scalia wrote, flew in the face of what was "appropriate and necessary." It was "not rational, never mind 'appropriate,' to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefit," Scalia declared. "No regulation is 'appropriate' if it does significantly more harm than good."

(Interesting aside: As Oklahoma attorney general, Scott Pruitt, Trump's pick to lead the EPA, helped lead the challenge to those regulations.)

Is a Border Wall Appropriate and Necessary?

Here's why this matters for the border wall. As Hemel et al. note, Trump's executive order demanding the construction of the wall relies on the Secure Fence Act of 2006 both as a source of funding and a way bypassing Congress (and Democratic filibusters). But that act authorizes actions that are "necessary and appropriate," the same words that Scalia parsed in Michigan v. EPA, just in reverse order.

Like the EPA's regulations, the law professors argue, Trump's wall will cost billions of dollars, while providing little benefit. The wall could cost up to $25 billion, according to the authors, with $500 million in annual upkeep. It would not stop immigrants from overstaying their visas (currently the most common form of illegal immigration), nor smugglers from tunneling underground. In fact, it is more likely to keep unauthorized immigrants in the U.S. than out of it, according to some research.

And if the wall works, it could cost the U.S. billions in lost taxes, lower consumer spending, and reduced productivity.

That means, Hemel, Masur, and Posner argue, a court could find under Michigan v. EPA that it is not "necessary and appropriate" to impose such losses for little to no benefit.

You Gotta Give 'Em Hope

There are, however, some problems with this argument. The authors note that standing might be an issue, first. But more importantly, Michigan v. EPA didn't hold that the EPA's clean air regulations were invalid because they weren't cost effective. Its holding was much more limited: The agency simply needed to consider costs, including compliance costs, before it could determine if a regulation is appropriate and necessary.

Applied to the wall, or a myriad of other government programs that could be pursued under statutes that allow for "appropriate and necessary" actions, Michigan v. EPA could simply require that costs are reviewed. It does not mandate an outcome. And while those appropriate and necessary determinations could be challenged as arbitrary, capricious, or otherwise contrary to law, courts are generally deferential to such agency determinations.

Which is to say, Scalia's opinion might be a thorn in Trump's side, but it probably won't be his Achilles' heel. Still, political battles have been won on less before.

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