It has been just under a year since a divided Supreme Court allowed the government to spend federal funds on the construction of President Donald Trump’s border wall while a legal challenge proceeded. Opponents of the wall returned to the Supreme Court on Wednesday, asking the justices to revisit the issue and order a temporary halt to the construction. Otherwise, they argued, the government will achieve “a complete victory despite having lost in every court,” because it will be able to finish the parts of the wall that are the subject of the ongoing litigation before that litigation concludes.
Wednesday’s filing from the Sierra Club and the Southern Borders Communities Coalition is the latest development in the dispute over funding for the wall along the U.S. border with Mexico. The groups sued to stop the wall last year, arguing that government officials did not have the power to spend more than Congress had already allocated for border security. In particular, the plaintiffs contended, the government could not spend $2.5 billion originally earmarked for military-personnel funds, which the Department of Defense had redirected to counter-narcotics funds so that the money could be used for the wall.
After a federal district judge in California blocked the government from using the Pentagon funds for construction of the wall, the government asked the Supreme Court last July to step in and allow it to move forward while it appealed to the U.S. Court of Appeals for the 9th Circuit. It cited both border security – the need to “stanch the flow of illegal narcotics across the southern border” – and the prospect that the funds for construction could disappear if construction contracts were not finalized by the time the government’s fiscal year ended on Sept. 30, 2019. The Supreme Court granted the government’s request and issued a stay of the district judge’s order. The government quickly moved forward with construction.
The 9th Circuit last month upheld the district judge’s ruling. Congress, the court of appeals concluded, had not appropriated funds for construction of the wall, and the Department of Defense could not rely on a provision in the defense appropriations law to justify the transfer from the military budget to the Department of Homeland Security for the wall.
Because of extensions granted as a result of the COVID-19 pandemic, the government’s petition for review of the 9th Circuit’s decision is not due until late November. And because the government has “sought to expedite construction of the wall,” the plaintiffs said in their filing on Wednesday, it will finish the challenged portions of the wall by the end of 2020 – that is, before the Supreme Court is likely to announce whether it will take up the case on the merits. Therefore, the plaintiffs contended, the Supreme Court should lift the stay that it put in place last July – a request that, if granted, would pause construction and give the justices time to fully consider the case.
Without the Supreme Court’s intervention soon, the plaintiffs complained, the government “will effectively prevail on the merits, even though every court to assess the legality of” the government’s actions “has found them unauthorized.” And once the wall is finished, even if the plaintiffs ultimately win, not all of the damage can be undone, they suggested: Among other things, the construction is damaging “ancient burial sites,” “destroying protected saguaro cacti that can take 100 years to reach maturity,” and draining “an aquifer that feeds a desert oasis where human beings have slaked their thirst for 16,000 years.”
This post is also published on SCOTUSblog.
