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Challengers respond in dispute over funding for border wall

The battle over the Trump administration’s efforts to build a wall along the U.S. border with Mexico continued to unfold today. Last week the federal government asked the Supreme Court to put on hold a district court’s order that prohibited the government from using $2.5 billion in Pentagon funds for construction of the wall. This afternoon the Sierra Club and the Southern Borders Communities Coalition, which filed the challenge to the use of the funds for construction of the wall, pushed back, urging the justices to deny the government’s request.

In a 50-page brief filed shortly before 4 p.m. EDT, lawyers for the challengers told the justices that giving the government the relief it seeks would have the opposite effect from the general purpose of a stay, which is to maintain the status quo while the court considers the case. If a stay is granted and wall construction begins, the challengers warned ominously, “there will be no turning back.”

The challengers emphasized that, once Congress had declined to allocate the funds for the wall that the administration had requested, the administration could not transfer funds from the Department of Defense to the Department of Homeland Security to accomplish the same thing. They recounted the history of the Trump administration’s request for $5.7 billion to fund 234 miles of construction along the U.S.-Mexico border. Congress denied that request, they stressed, allocating “only a fraction of the money” for construction of fencing in eastern Texas. “Eleven days later,” they continued, “DHS requested that DoD transfer billions to DHS for it to construct ‘approximately 218 miles of barriers’” outside of Texas – despite a “deliberate decision by Congress” not to fund those barriers.

And the challengers questioned whether a stay was even necessary, citing several examples of what they characterized as the government’s delays on appeal. Moreover, they added, although Congress had allocated over $1.5 billion for barriers along the border during fiscal year 2018, as of the end of April of this year the government had only built 1.7 miles of fencing with that funding.

Despite the abbreviated briefing schedule – Justice Elena Kagan, who serves as the circuit justice for the U.S. Court of Appeals for the 9th Circuit, gave the challengers just one week to respond – there were four “friend of the court” briefs filed today – three supporting the challengers and one supporting the Trump administration. One brief supporting the challengers came from the U.S. House of Representatives. It told the justices that, through “a hard-fought political battle, Congress unmistakably refused to appropriate funding for the construction of a border wall in the amounts that the Administration sought, and the Administration is violating the Appropriations Clause by nevertheless spending money Congress refused to provide.”

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Challengers respond in dispute over funding for border wall, SCOTUSblog (Jul. 19, 2019, 4:58 PM),