WASHINGTON — The Supreme Court on Friday rejected a last-ditch effort from environmentalists to stop the ongoing construction of parts of President Donald Trump’s border wall.
The Sierra Club had asked the justices to undo their decision from a year ago that allowed construction. A panel of the U.S. Court of Appeals for the 9th Circuit ruled in late June that the administration’s use of funds intended for the Defense Department was unlawful.
Without the Supreme Court’s action, said lawyers for the American Civil Liberties Union, which is representing the Sierra Club and the Southern Border Communities Coalition, the Trump administration will have used all of the money before the justices have a chance to decide the merits of the case.
But the court on Friday allowed its previous order to stand, with its conservatives in the majority and the four liberals objecting. As is often the case in emergency orders, the majority did not explain its reasoning.
In a short dissent, Justice Stephen Breyer said the government would not be harmed by the environmentalists’ request.
“The government has apparently finalized its contracts, avoiding the irreparable harm it claimed in first seeking a stay,” Breyer wrote. “The court’s decision to let construction continue nevertheless, I fear, may operate as a final judgment.” He was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
A panel of the Ninth Circuit ruled last month that Trump’s transfer last year of $2.5 billion in military funds to pay for border wall construction was an illegal overreach of executive authority.
Trump, who ran for office in 2016 promising that Mexico would pay for the border wall, has obtained more than $15 billion in federal funds for his signature project, including $5 billion provided by Congress through conventional appropriations. The president has tapped into Pentagon accounts for the remaining $10 billion, including the $2.5 billion transfer last year that the Ninth Circuit said was unlawful.
Last summer, the Supreme Court in a similar 5-4 vote allowed the administration to proceed with the transfers and contracts for construction even though House Democrats, affected states and environmental groups said that violated the will of Congress, which withheld the funds from the administration.
As a practical matter, much of the $2.5 billion has been spent and the portions of the wall funded by it have been built. About 40 miles of two projects in New Mexico and Arizona have yet to be completed.
In allowing the administration last summer to proceed, the Supreme Court’s conservative majority said that the government had “made a sufficient showing at this stage” that private entities could not challenge the transfer of money by the executive branch.
But the 9th Circuit panel agreed with a district judge who said that was not so. “It is for the courts to enforce Congress’s priorities,” the panel said in a 2-1 decision, and it found the Sierra Club “may invoke separation-of-powers constraints, like the Appropriations Clause, to challenge agency spending in excess of its delegated authority.”
Acting Solicitor General Jeffrey Wall said that was no reason for the court to lift its stay.
“A single decision from a divided panel of the Ninth Circuit, adopting reasoning that this court previously found wanting, is hardly the sort of intervening development that would warrant reconsidering a prior order of this court,” Wall said in a brief to the justices.
The ACLU said the court should still vote later to hear the merits of the case.
“We’ll be back before the Supreme Court soon to put a stop to Trump’s xenophobic border wall once and for all,” said ACLU lawyer Dror Ladin. “The administration has admitted that the wall can be taken down if we ultimately prevail, and we will hold them to their word and seek the removal of every mile of unlawful wall built.”
The case is Sierra Club v. Trump.