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Supreme Court says Trump can proceed with plan to spend military funds for border wall construction

U.S. military personnel assist as Border Patrol agents take asylum seekers into custody at the border with Mexico in July. (Jose Luis Gonzalez/Reuters)

A split Supreme Court said Friday night that the Trump administration could proceed with its plan to use $2.5 billion in Pentagon funds to build part of the president’s wall project along the southern border.

The court’s conservatives set aside a lower-court ruling for the Sierra Club and a coalition of border communities that said reallocating Defense Department money would violate federal law.

Friday’s unsigned ruling came in response to an emergency filing from the administration during the court’s summer recess. The majority said the government “made a sufficient showing at this stage” that private groups may not be the proper plaintiffs to challenge the transfer of money.

The court’s action is a stay of the injunction issued by the U.S. Court of Appeals for the 9th Circuit on a 2-to-1 vote, and the litigation continues. The administration wants to finalize contracts for the work before the fiscal year ends Sept. 30.

The Washington Post traveled to the Mexico-Guatemala border to see how Mexican authorities are trying to stem the flow of migrants. (Video: Zoeann Murphy/The Washington Post)

Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh voted to lift the 9th Circuit injunction. Three justices — Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — would have left it in place.

Justice Stephen G. Breyer proposed a compromise to which no one signed on: allow the government to finalize contracts for the project but not begin construction.

In a tweet after the court’s announcement, President Trump declared the development a “Big WIN for Border Security and the Rule of Law!”

The groups opposing the wall construction noted that the litigation continues.

“This is not over. We will be asking the federal appeals court to expedite the ongoing appeals proceeding to halt the irreversible and imminent damage from Trump’s border wall,” Dror Ladin, staff attorney with the American Civil Liberties Union’s National Security Project, said in a statement. The ACLU represented the groups.

“Our Constitution’s separation of powers will be permanently harmed should Trump get away with pillaging military funds for a xenophobic border wall Congress denied,” Ladin said.

House Speaker Nancy Pelosi (D-Calif.) also criticized the decision Friday night. “For months, the President has sought to undermine our military readiness and steal from our men and women in uniform to waste billions on a wasteful, ineffective wall that Congress on a bipartisan basis has repeatedly refused to fund. The Supreme Court’s decision tonight to allow President Trump to defy the bipartisan will of the Congress and proceed with contracts to spend billions of dollars on his wall undermines the Constitution and the law,” she said in a statement.

Appeals court upholds freeze on using Defense funds for border wall

In a decision earlier this month, a 9th Circuit panel noted that a stalemate between Congress and Trump over the issue prompted the longest government shutdown in history. The judges reasoned that Congress made its intentions clear by allocating only about $1.4 billion for enhanced border protection.

The appeals court said the public interest was “best served by respecting the Constitution’s assignment of the power of the purse to Congress, and by deferring to Congress’s understanding of the public interest as reflected in its repeated denial of more funding for border barrier construction.”

After Congress’s decision this year, Trump announced plans to use more than $6 billion allocated for other purposes to fund the wall, which was the signature promise of his presidential campaign

Environmentalists and the Southern Border Communities Coalition immediately filed suit to block the transfer of funds. Democrats in the House of Representatives filed a brief supporting them.

U.S. Solicitor General Noel Francisco told the Supreme Court that the 9th Circuit ruling was wrong. “The sole basis for the injunction — that the Acting Secretary exceeded his statutory authority in transferring the funds — rests on a misreading of the statutory text,” Francisco wrote. He was referring to Patrick M. Shanahan, who was acting defense secretary at the time.

Francisco said private groups may not challenge the transfer. He added that even if they could, their “interests in hiking, birdwatching, and fishing in designated drug-smuggling corridors do not outweigh the harm to the public from halting the government’s efforts to construct barriers to stanch the flow of illegal narcotics across the southern border.”

Justice Department spokesman Alexei Woltornist said Friday: “We are pleased that the Supreme Court recognized that the lower courts should not have halted construction of walls.”

Even though the Supreme Court has scattered for its summer recess, the court continues to consider emergency motions and makes decisions on the basis of briefs. The majority’s reasoning was scant in the short order it released, but it seemed to agree with Francisco about the law governing transfers of money within the government.

“Among the reasons” for granting the administration’s request, the opinion said, “is that the government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance” with federal law.

Pentagon will shift an additional $1.5 billion to help fund Trump’s border wall

The money was transferred from Defense Department personnel funds in response to a request from the Department of Homeland Security. Federal law allows such transfers for “unforeseen” reasons and for expenditures not previously “denied by the Congress.”

The administration contends that Congress did not reject the specific expenditures at issue, which would fund projects in California, New Mexico and Arizona.

The challengers told the Supreme Court that Congress was clear in its intent.

“Congress recently considered, and rejected, the same argument defendants [the government] make here: that a border wall is urgently needed to combat drugs,” said the brief from lawyers at the ACLU.

“If defendants were nonetheless permitted to obligate taxpayer funds and commence construction, the status quo would be radically and irrevocably altered.”

The brief from the U.S. House of Representatives agreed.

Breyer, the only justice to write in detail about the issue, said the case “raises novel and important questions about the ability of private parties to enforce Congress’ appropriations power. I would express no other view now on the merits of those questions.”

But he said the majority’s decision may allow the government “to begin construction of a border barrier that would cause irreparable harm to the environment” and to the challengers.

“The government’s only response to this claim of irreparable harm is that, if respondents ultimately prevail, the border barrier may be taken down (with what funding, the government does not say). But this is little comfort because it is not just the barrier, but the construction itself (and presumably its later destruction) that contributes to respondents’ injury.”

After the 9th Circuit’s July 3 ruling, Francisco moved quickly to ask the Supreme Court to dissolve the lower court’s injunction. He asked the justices to rule by Friday so that the Defense Department would have time to finalize construction contracts before the end of the fiscal year. Otherwise, he said, “the remaining unobligated funds will become unavailable.”

The challengers said the money already was unavailable.

The brief filed by the House said the money would not be lost but would simply go back into the treasury, where the administration would again be free to make its request to Congress.

It said there was no rush. “The administration has apparently completed only 1.7 of the 95 miles of border fencing Congress approved and appropriated funds for in fiscal year 2018,” it said.

The case is Trump v. Sierra Club, et al.