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Justices allow government to go ahead with funding for border wall

The Supreme Court tonight agreed to put on hold a lower-court ruling that had barred the government from spending $2.5 billion in Pentagon funds to build a wall along the U.S. border with Mexico. The justices were divided along ideological lines: The court’s five more conservative justices voted to grant the government’s request, while the court’s four more liberal justices would not have allowed construction to go forward.

Today’s order was the latest chapter in the dispute over funding for the wall, which was filed earlier this year by the Sierra Club and the Southern Borders Communities Coalition. The two groups argued that government officials did not have the power to spend more than Congress had already allocated for border security – specifically, the $2.5 billion originally earmarked for military-personnel funds that the Department of Defense redirected to its counter-narcotics funds so that the money could be used for the construction of the wall.

After a federal district judge in California prohibited the government from using the Pentagon funds to build the border wall, the government went to the U.S. Court of Appeals for the 9th Circuit. But that court rejected the government’s request to block the lower court’s ruling pending appeal, setting up last week’s request to the Supreme Court.

The government urged the justices to allow it to go ahead and use the Pentagon funds for border-wall construction while it appeals the district court’s ruling to the 9th Circuit. It stressed the need to build the wall “to stanch the flow of illegal narcotics across the southern border,” and it urged the court to act on its request by July 26: If the construction contracts are not finalized by September 30, when the fiscal year ends, the government explained, they will no longer be available.

The challengers pushed back, countering that because Congress had declined to allocate money for the border wall, the government could not transfer money from the Pentagon to the Department of Homeland Security. Moreover, they added, once construction of the wall begins, “there will be no turning back.”

Tonight the Supreme Court granted the government’s request and put the lower court’s ruling on hold to give the government time to appeal. In a brief unsigned order, the court explained that, among other things, the government had made the showing required at this preliminary stage of the case that the Sierra Club and the SBCC may not be the right plaintiffs to challenge the reallocation of the funds.

Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan indicated that they would have denied the government’s request.

In a separate opinion, Justice Stephen Breyer noted that the challengers had argued that the construction of the wall would harm the environment, while the government had argued that its request should be granted to avoid a scenario in which the funds for the wall were no longer available after September 30 because the construction contracts had not been finalized. Breyer explained that he would have split the difference and allowed the government to finalize the contracts but not to begin construction.

In a statement issued after the ruling, Alexei Woltornist, a spokesperson for the Department of Justice, said that the government was “pleased that the Supreme Court recognized that the lower courts should not have halted construction of walls on the southern border. We will continue to vigorously defend the Administration’s efforts to protect our Nation.”

Recommended Citation: Amy Howe, Justices allow government to go ahead with funding for border wall, SCOTUSblog (Jul. 26, 2019, 9:51 PM),