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Battle over border wall comes to the court

The battle over the Trump administration’s efforts to build a wall along the U.S.-Mexico border came to the Supreme Court today, as the federal government asked the justices to block a lower-court order that barred the government from using $2.5 billion in Pentagon funds for construction of the wall.

The lawsuit in which the justices have been asked to intervene was filed in February of this year by the Sierra Club, an environmental group, and the Southern Border Communities Coalition, a group that promotes policies to improve the quality of life in border communities. They argued that government officials exceeded their authority when they spent more money than Congress had allocated for border security – and, in particular, when the Department of Defense redirected $2.5 billion originally earmarked for military-personnel funds to its counter-narcotics funds for use in construction of the wall.

A federal district court in California barred the government from using the money for border-wall construction, and on July 3 a federal appeals court rejected the government’s request to put a hold on that decision pending appeal. Judges Richard Clifton and Michelle Friedland concluded that, under federal law, after Congress had denied the government’s request for funds for the wall, the Department of Defense could not reallocate funds to accomplish the same thing.

Today the government came to the Supreme Court, asking the justices to put the district court’s order on hold while it appeals to the U.S. Court of Appeals for the 9th Circuit (and, if necessary, while the government seeks Supreme Court review). The government also asked the justices to enter an “administrative stay”—a temporary hold while the Supreme Court considers its request.

In a filing by U.S. Solicitor General Noel Francisco, the government told the justices that the ruling below was simply wrong: The “sole basis” for the order blocking it from using the $2.5 billion for border-wall construction “rests on a misreading” of the law that authorizes the Department of Defense to reallocate its funds in some circumstances. What’s more, the government added, the challengers’ “interests in hiking, bird watching, 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 government asked the Supreme Court to act by July 26, telling the justices that the funds at the center of the dispute will be unavailable if they are not committed by the time the fiscal year ends on September 30. Justice Elena Kagan, who has primary responsibility for emergency appeals from the 9th Circuit, quickly called for a response from the challengers, setting a deadline of next Friday, July 19, at 4 p.m. EDT.

Recommended Citation: Amy Howe, Battle over border wall comes to the court, SCOTUSblog (Jul. 12, 2019, 7:56 PM),