Splitting 5-4, the Supreme Court on Friday evening cleared the way for the Trump Administration to issue contracts and start building about 100 miles of 30-foot-high walls, brightly lit, along the U.S.-Mexico. It acted without ruling that the government had the legal authority to do so.
In a one-paragraph order, the Court put on hold for what may be nearly a year a lower court order blocking the planned spending of $2.5 billion of Pentagon funds that challengers argued had not been specifically approved by Congress, as the Constitution requires.
The dispute grew out of the impasse over border wall funding between President Trump and Congress that led early this year to the longest shutdown of the federal government in history — 34 days.
While the case has significant implications for Congress’s constitutional power to control government spending, the Court’s action did not appear to deal with that fundamental question.
The majority, made up of the Court’s five conservative Justices, did not provide a full explanation for its action. What it did say, in a single sentence, was that the environmental and other advocacy groups challenging the spending probably did not have the legal right to sue the Pentagon over the shifting of funds to the border wall project.
Without saying so directly, the order appeared to be largely based on a decision by the Court 25 years ago dismissing a lawsuit that sought to block the Pentagon from closing the Philadelphia Naval Shipyard. In that 1994 decision, in the case of Dalton v, Specter, the Justices had ruled that the case turned only on the meaning of a federal law, which the courts could not review, and was not properly treated as a claim under the Constitution, which would have been allowed in court.
Trump Administration lawyers had relied heavily on that earlier ruling as they urged the Court to postpone the lower court order barring the spending while the case continued in court. The Justices’ order will remain in effect until the case has gone through a federal appeals court and, if the Supreme Court later grants full review, until a final decision has been announced – probably not before next June.
On the Trump plans for the border wall specifically at issue in the dispute before the Court, it would be erected in border areas of Arizona, California and New Mexico. It would go up in areas between ports of entry from Mexico into the U.S.
The Trump Administration argued that the barrier is needed to stop cross-border shipments of illegal drugs. Tons of illegal drugs have been seized in the four areas involved, according to the Department of Homeland Security. The funds at issue were not granted by Congress for a border wall, but the Administration claims they will be transferred from military funds that Congress had approved earlier for anti-drug enforcement efforts.
The Sierra Club and another advocacy group that works on border issues – the Southern Border Communities Coalition – sued to block the funding, contending that the new barrier would interfere with their right to use and enjoy “delicate public lands” and waters, including the Organ Pipe National Monument, Coronado National Monument, Cabeza National Wildlife Refuge, and San Bernardino National Wildlife Refuge.
From the time President Trump entered office, he has wanted to put up a wall along the border with Mexico. He has argued that it would help stem the cross-border traffic in illegal drugs and would also help stop the flow of Central American immigrants entering the U.S. illegally from Mexico.
At one point, the President asked Congress for $18 billion in funds for such a wall.
After the government shutdown ended, Congress agreed to provide $1.375 billion for border protection, but put strict limits on how the funds could be used. Shortly after the President signed that compromise into law, he invoked emergency powers and authorized the Pentagon to shift an added $2.5 billion for the 100-mile-long barrier that is disputed in the case now before the courts.
While lower federal courts agreed to block this spending, finding that it did not fit within the spending law on which the Pentagon was relying, they also indicated that the dispute actually is a test of whether the Executive Branch can constitutionally spend money that Congress not only has not specifically approved, but which it has explicitly refused to provide.
In asking the Supreme Court to issue a “stay” so that it can enter contracts for the new segment, Administration lawyers contended that the dispute is not actually about constitutional powers, but only about how to interpret the federal statute on which the Pentagon relied in shifting funds from the drug law enforcement account into the wall project account.
The Administration had asked the Justices to act by Friday, because it argued that it needed time to work out contracts for the work, and that the money would no longer be available to pay for the barrier when the fiscal year ends on September 30
The Supreme Court order did not mention that timing factor, but it did show respect for that claim by acting before the end of the day Friday.
Joining in support of the order were Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Clarence Thomas. They were not listed in the order, but it would have taken five votes to issue such an order.
Three of the Court’s more liberal Justices – Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor – said that they would refuse any delay of the lower court order against the spending, but they did not give their reasons.
The fourth member of the Court’s liberal minority bloc, Justice Stephen G. Breyer, wrote a three-page opinion, saying that he would have allowed the Administration to enter the contracts for the new barrier but not to begin actual construction of it. No one else supported that proposed compromise.
Breyer was the only one who acknowledged the importance of the dispute, commenting that “this case raises novel and important questions about the ability of private parties to enforce Congress’ appropriations power.”
The Democratic-controlled U.S. House of Representatives entered the case to defend its authority, arguing that “this case arises out of the Administration’s disregard for the bedrock constitutional principle that ‘no money shall be drawn from the Treasury, but in consequence of appropriations made by law’ “ – a quotation from Article I, which gives the House the initial authority to approve of any spending of federal funds.