A rally at the Supreme Court against the Trump administration's effort to ban immigration from seven Muslim-majority countries. Photo: Diego M. Radzinschi/ ALM

A divided U.S. Supreme Court on Friday temporarily halted a federal court injunction that was prohibiting the Trump administration from using certain funds to pay for a border wall that Congress has not approved.

The high court, voting along ideological lines, said the Trump administration made a sufficient showing that the challengers had no cause of action to seek review of the decision to use Defense Department funds.

Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan would not have granted the stay. Justice Stephen Breyer said he would have allowed the government to go forward withe preparations for the wall but not to begin actual construction.

“Allowing the government to finalize the contracts at issue, but not to begin construction, would alleviate the most pressing harm claimed by the government without risking irreparable harm to respondents,” Breyer wrote.

The U.S. Court of Appeals for the Ninth Circuit earlier refused to disturb the injunction, and the Justice Department went to the Supreme Court. President Donald Trump has touted a border wall as a central part of his administration's move to restrict the arrival of immigrants along the southern border with Mexico.

Lawsuits in Washington, California and Texas urged judges to stop the administration from using certain Defense Department and other funds for a project for which Congress has chosen not to provide appropriations. The justices' decision effectively allows Trump start building portions of the border wall.

In the California case, the Sierra Club challenged the transfer of $2.5 billion by the acting secretary of defense from other appropriation accounts into the appropriation account that the Defense Department uses to fund its counter-narcotic efforts.

Noel Francisco, the U.S. solicitor general, told the justices that the funds transfer was made “pursuant to express statutory authority” and at the request of the Department of Homeland Security “for assisting in combating the enormous flow of illegal narcotics across the southern border.” The Trump administration wants to use the money to construct more than 100 miles of fencing along the border.

Noel Francisco U.S. Solicitor General Noel Francisco. Photo: Diego M. Radzinschi / NLJ

The district court misread the statutory text in ruling that the acting secretary exceeded his authority, Francisco claimed. He also said the recreational and aesthetic interests of the Sierra Club and other private parties do not fall within the “zone of interests” protected by the transfer statute.

The Sierra Club challengers, represented by Cecellia Wang of the American Civil Liberties Union, countered that a stay “would dramatically upend the status quo, irrevocably injure delicate public lands, and permit defendants to irretrievably commit taxpayer funds in contravention of Congress's considered spending judgment.”

Wang argued that the funds transfer was unauthorized by the plain language of the statutes that the government invoked “and raise serious constitutional concerns in light of Congress's exclusive control over the public fisc.”

If a stay were granted, she added, “and wall construction begins, there will be no turning back. By essentially handing defendants an irrevocable victory, a stay would accomplish the opposite of a stay's proper purpose: providing interim relief to allow for considered review.”

The U.S. House of Representatives, represented by House general counsel Douglas Letter and a team from Sidley Austin, including Supreme Court veteran Carter Phillips, filed an amicus brief supporting the challengers in the high court.

“This case arises out of the Administration's disregard for the bedrock constitutional principle that '[n]o money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law,'” Letter wrote.

California and New Mexico, both border states, also filed an amicus brief supporting the challengers as did the Tohono O'Odham Nation, represented by Samuel Daughety of Dentons. Lawrence Joseph of Washington, D.C., represented U.S. Rep. Andy Barr, R-Kentucky, an amicus party supporting the government.

The House is a plaintiff in a lawsuit in Washington's federal trial court. U.S. District Judge Trevor McFadden of the District of Columbia in June concluded the House did not have standing to sue over the border-wall funding. The House has appealed.

 

 

The court's order is posted below:

 

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