Border-Wall Construction Can Continue, Supreme Court Says - WSJ
By: Jess Bravin (WSJ)
S E E D E D C O N T E N T
WASHINGTON—The Supreme Court declined, 5-4, Friday to halt work on the border wall the Trump administration has been building without authorization from Congress, likely ensuring that more than 200 miles of the president’s signature project will be completed before litigation over its legality is resolved.
Lower courts had found that President Trump exceeded his powers by declaring a national emergency and reallocating to the border-wall project $2.5 billion lawmakers had budgeted for other purposes. At the administration’s request, the Supreme Court in July 2019, by the same 5-4 vote along conservative-liberal lines, allowed construction to cont inue while the government appealed.
Environmental groups, which brought suit to halt construction , returned to the high court last week. The groups warned in their motion that unless the justices lifted their July 2019 order, they effectively were handing the administration “a complete victory despite having lost in every court.”
As in July 2019, the majority’s unsigned order Friday provided no explanation for its decision. Justice Stephen Breyer filed a two-paragraph dissent, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
“The Supreme Court reaffirmed today that it meant what it said a year ago: special interest groups likely lack any cause of action to sue the Department of Defense from transferring funds, and the Trump Administration should be allowed to build the wall and protect our country while litigation proceeds,” the White House said in a statement Friday night. “Borders are a non-controversial reality of every sovereign nation, and we plan to defend ours.”
While the justices had never heard argument or ruled on the merits of the dispute, “the Court’s decision to let construction continue nevertheless, I fear, may ‘operate, in effect, as a final judgment’” for the government, Justice Breyer wrote, referencing his own position a year ago.
The American Civil Liberties Union, representing the Sierra Club and the Southern Border Communities Coalition, alleged that the wall would damage environmentally sensitive areas along the U.S.-Mexico border. The Democratic-majority House of Representatives filed briefs supporting the suit.
“This unique landscape is renowned for its beauty and archaeological, historic, and biological value, and includes protected public lands, including Organ Pipe National Monument, Coronado National Memorial, the Cabeza Prieta National Wildlife Refuge, and the San Bernardino National Wildlife Refuge,” they wrote.
The Justice Department argued in earlier filings that the government had legal authority to shift the funds in order to fight drug trafficking. The plaintiffs’ “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,” the DOJ brief argued.
In siding with the plaintiffs, a federal appeals court in San Francisco observed that Congress explicitly rejected the administration’s request for $5.7 billion to fund the wall in the 2019 fiscal year. Mr. Trump first refused to sign an appropriations bill without the funding prompting a 35-day partial government shutdown in December 2018. He later signed appropriations bills without wall funds that reopened the government, then asserted emergency powers to reallocate several billion dollars unilaterally.
The House and Senate voted to terminate the emergency Mr. Trump had declared, but the president vetoed the resolutions and Congress failed to muster the two-thirds majority needed to override him.
The appeals court said that the border wall didn’t qualify for emergency reallocation of funds because it wasn’t an “unforeseen” contingency and Congress specifically had rejected the wall project.
In opposing the ACLU motion, the Justice Department said there was nothing new to consider; the court’s July 2019 order already had rejected them, the brief said. The government added that it planned to file in August for a full Supreme Court review of the case, meaning that justices would have the opportunity to consider the merits in their next term, which begins Oct. 5.
”The fight continues,” said ACLU attorney 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.”
“We are pleased with the decision,” said a Justice Department representative.
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