Lift a lower court order

Supreme Court gives Trump go-ahead on border wall

Justices lift a lower court order blocking part of the president's plan to expand the border wall with Mexico.

By JOSH GERSTEIN

President Donald Trump scored a major victory at the Supreme Court on Friday, as the justices lifted a lower court order blocking a key part of his plan to expand the border wall with Mexico.

The Justice Department had asked the justices to stay a pair of rulings an Oakland-based federal judge issued in May and June blocking Trump’s plan to use about $2.5 billion in unspent military funds for wall projects in California, Arizona and New Mexico.

All the Republican-appointed justices voted in favor of allowing Trump to proceed with that aspect of his plan while litigation over the issue continues. All the Democratic-appointed justices dissented, except for Justice Stephen Breyer who said he would have allowed the contracting process to move forward but blocked actual construction.

The president touted the ruling in a tweet Friday evening: "Wow! Big VICTORY on the Wall. The United States Supreme Court overturns lower court injunction, allows Southern Border Wall to proceed. Big WIN for Border Security and the Rule of Law!"

However, the ruling may not signal that all challenges to the border wall funding in dispute are certain to fail.

The Supreme Court rarely explains its reasons for granting or denying a stay, but the order Friday declared that “the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review” of the decision to transfer the funds from a Pentagon account.

The statement suggested that the five justices in the majority agreed with the Trump administration’s arguments that the groups who obtained the injunction, the Sierra Club and the Southern Border Communities Coalition, lacked a valid legal mechanism to enforce the budget rider Trump officials were allegedly violating.

That may not rule out the possibility that others who have sued over the same policy, including 20 states and the House of Representatives, might have stronger claims. The states’ suit was essentially set aside due to the injunction granted to the private groups.

A judge dismissed the House’s suit last month but that ruling is on appeal.

House Speaker Nancy Pelosi tweeted later Friday: "This evening’s Supreme Court ruling allowing @realDonaldTrump to steal military funds to spend on a wasteful, ineffective border wall rejected by Congress is deeply flawed. Our Founders designed a democracy governed by the people — not a monarchy."

California Attorney General Xavier Becerra, who's leading the 20-state coalition suing over the wall, expressed disappointment in the ruling but vowed to fight on in lower courts.

“Troubling development in the Supreme Court. We remain focused on arguments in our lawsuit currently in the Ninth Circuit. Bottom line: this fight isn’t over, and we have lots of fight in us. Our democratic institutions and core constitutional principles depend on it,” Becerra said.

Trump announced in May that he intended to spend over $8 billion on border wall construction, despite the fact that Congress appropriated only $1.375 billion for that purposes and limited its use to southeast Texas. He also declared a state of emergency in an effort to unlock a portion of the funds.

The roughly $2.5 billion at issue in the litigation was identified by the administration as available because of a provision allowing excess military personnel funds and other Pentagon money to be spent on counterdrug projects.

However, the language allowing that flexibility rules out spending on any “item” previously denied by Congress.

Rulings from the district court in Oakland and from the 9th Circuit Court of Appeals portrayed Trump’s move as an illegal end-run around Congress’s authority to control federal spending.

On July 12, the Justice Department filed an emergency stay application with the Supreme Court, asking it to step in and stay the lower court orders so that contracting and spending on the wall projects could proceed.

Administration lawyers argued expanding the wall is urgent due to a surge in drug trafficking, but the appeals court noted that officials say most drugs are smuggled through staffed border checkpoints.

The justices who indicated they would have denied the stay outright did not issue any statement explaining their decision.

The only detailed explanation came from Breyer, who seemed to endorse the idea that the key question in the case is whether citizens’ groups can enforce budget restrictions passed by Congress.

“This case raises novel and important questions about the ability of private parties to enforce Congress’ appropriations power,” Breyer wrote. “I would express no other view now on the merits of those questions.”

“Allowing the Government to finalize the contracts at issue, but not to begin construction, would alleviate the most pressing harm claimed by the Government without risking irreparable harm to respondents,” Breyer added.

The ACLU, which filed the lawsuit on behalf of the Sierra Club and the Southern Border Communities Coalition, said in a statement that it would seek to expedite proceedings before the Ninth Circuit in a bid to restore the block on wall funding.