Supreme Court says Trump can proceed with plan to spend military funds for border wall construction – By Robert Barnes (Washington Post) / July 26 2019
The Supreme Court Friday night on a 5 to 4 vote revived the Trump administration’s plan to use $2.5 billion in Pentagon funds to build part of the wall project along the southern border.
© Gregory Bull/AP Crews install new border wall sections in southern California.
The court’s conservatives set aside a U.S. Court of Appeals for the 9th Circuit ruling for the Sierra Club and a coalition of border communities that said a reallocation of the Defense Department money would violate federal law.
The unsigned ruling by the Supreme Court said the government “made a sufficient showing at this stage” the groups did not have proper standing to challenge transfer of money.
In a 2-to-1 decision earlier this month, the 9th Circuit majority noted that a stalemate between Congress and President 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 lower 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 earlier 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 secretary at the time.
Francisco said that the challengers did not have proper legal standing to challenge the transfer of funds. He added that even if they did, 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.”
The money was transferred from DOD 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 said Congress was clear.
“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 American Civil Liberties Union, which represented the groups.
“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.
“The administration refuses to accept this limitation on its authority, as clearly demonstrated by Acting White House Chief of Staff Mick Mulvaney’s statement that President Trump’s border wall ‘is going to get built with or without Congress,’ ” House General Counsel Douglas N. Letter wrote. “Under our constitutional scheme, an immense wall along our border simply cannot be constructed without funds appropriated by Congress for that purpose.”
And Letter said that the administration’s view of who is within the “zone of interest” to have standing to sue is “in reality, an argument that no one can challenge the conduct at issue here.”
Francisco moved quickly after the 9th Circuit’s July 3 ruling to ask the Supreme Court to dissolve the lower court’s injunction. It asked the justices to rule before July 26, so the Defense Department would have time to finalize construction contracts before the end of the fiscal year on Sept. 30.
Otherwise, he said, “the remaining unobligated funds will become unavailable.”
The challengers said the money already was unavailable.
© Jose Luis Gonzalez/Reuters U.S. military personnel assist as Border Patrol agents take asylum seekers into custody at the Mexico border in July.
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 noted 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.
