One week after opponents of President Donald Trump’s border wall asked the justices to order a temporary halt to construction, the Trump administration on Wednesday told the Supreme Court that the government should be allowed to continue to spend federal funds on construction while a legal challenge continues. Last week’s filing by the Sierra Club and the Southern Borders Communities Coalition, the Trump administration wrote, doesn’t make any new arguments that would justifying lifting the Supreme Court’s year-old stay of a federal trial court’s order, and its “old arguments remain equally flawed.”
The dispute over the wall on the U.S.-Mexico border began last year, when the Sierra Club and the SBCC filed a lawsuit in federal court in California. They argued that government officials lacked the power to spend more than Congress had already allocated for border security, including $2.5 billion in Pentagon funds that the Department of Defense had reallocated to counter-narcotics funds so that it could be used for construction of the wall. A federal judge in California agreed and blocked the Trump administration from using the Pentagon funds for the wall, but the Supreme Court put that order on hold last summer, allowing construction to continue while the government appealed to the U.S. Court of Appeals for the 9th Circuit.
After the 9th Circuit upheld the judge’s ruling last month, the Sierra Club and the SBCC returned to the Supreme Court last week, asking the justices to lift the stay. Otherwise, they complained, the Trump administration could run out the clock and finish the wall before the Supreme Court is even likely to announce whether it will take up the case. Not only will that allow the government to “effectively prevail on the merits,” the groups argued, but once the wall is completed, not all of the damage can be remedied even if the challengers ultimately win – for example, the construction is damaging “ancient burial sites.”
In a filing signed by Acting U.S. Solicitor General Jeffrey Wall, the Trump administration countered on Wednesday that there is no “sound basis” for the Supreme Court to reconsider last year’s decision to put the district court’s decision on hold. Indeed, the government noted, the Sierra Club and SBCC have not identified any other case in which the court has lifted a similar stay. The court has already rejected the groups’ arguments once, the government emphasized, and when it did so it was “presumably aware that the result would be construction during litigation.” Stopping the construction now, the government said, would impose “significant costs,” because the Department of Defense might have to reimburse its contractors for expenses associated with a delay.
The government also pushed back against the groups’ suggestion that it would try to delay seeking Supreme Court review to benefit from the stay. As the groups “would have learned” if they had asked the government before filing their motion last week, the government said, the government plans to file its petition for review of the 9th Circuit’s decision on Aug. 7, which would allow the justices to consider it at their first conference after the summer recess.
This post is also published on SCOTUSblog.