SUPREME COURT ALLOWS PRESIDENT TRUMP TO ACCESS CERTAIN DEPARTMENT OF DEFENSE FUNDS TO BUILD BORDER WALL

Written by: Taher Kameli, Esq.

While the Federal judiciary often has been viewed as the best hope to protect immigrant rights against the anti-immigration policies of the Trump administration, concern has been expressed about whether the Supreme Court can in fact serve in this role.  The argument is that the recent appointments of Justice Neil Gorsuch and Justice Brett Kavanaugh to the Supreme Court by President Trump will give the Supreme Court a conservative bent that will cause it to support the anti-immigration policies of the Trump administration.  As one decision that appears to support this argument, on July 26, the Supreme Court put on hold a lower court ruling and allowed President Trump to access certain Department of Defense funds to build the United States-Mexico border wall.

The case arose from President Trump’s decision earlier this year to declare a “national emergency” at the United States-Mexico border and divert Department of Defense funds intended for other purposes to instead be used to construct the border wall.  In response, the American Civil Liberties Union filed litigation on behalf of the Sierra Club and the Southern Border Communities Coalition, including asking for an injunction to prevent such diversion of Department of Defense funds to build the border wall.  

U.S. District Court Judge Haygood Gilliam, Jr. had issued a ruling (Sierra Club v. Trump, 2019 U.S. Dist. LEXIS 88210 (N.D. Cal. 2019)) for a preliminary injunction that prohibited the Trump administration from accessing $1 billion of Defense Department funding to begin work on 2 specific border wall construction projects – one covering 46 miles in New Mexico and another covering 5 miles in Yuma, Arizona.  The U.S. Court of Appeals for the 9th Circuit then rejected the Trump administration’s request to stay the District Court’s ruling pending appeal (Sierra Club v. Trump, 2019 U.S. App. LEXIS 19978 (9th Cir. 2019)).

The Trump administration had better success before the Supreme Court.  In an unsigned opinion (Trump v. Sierra Club, 2019 U.S. LEXIS 4491 (S. Ct. 2019)) supported by its 5 conservative members (Chief Justice John Roberts, Jr., Justice Clarence Thomas, Justice Samuel Alito, Jr., Justice Gorsuch, and Justice Kavanaugh), the Supreme Court ruled, “The application for stay . . . is granted.  Among the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005. The District Court’s June 28, 2019 order granting a permanent injunction is stayed pending disposition of the Government’s appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is timely sought.  Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate when the Court enters its judgment.

Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor, and Justice Elena Kagan disagreed with the Supreme Court’s opinion, as they would deny the stay.  Justice Stephen Breyer wrote a separate opinion, stating, “I would grant the Government’s application to stay the injunction only to the extent that the injunction prevents the Government from finalizing the contracts or taking other preparatory administrative action, but leave it in place insofar as it precludes the Government from disbursing those funds or beginning construction.  I accordingly would grant the stay in part and deny it in part”.

In response to the Supreme Court’s ruling, Justice Department spokesman Alexei Woltornist stated, “We are pleased that the Supreme Court recognized that the lower courts should not have halted construction of walls”.  On the other hand, House Speaker Nancy Pelosi criticized the Supreme Court’s ruling, stating, “For months, the President has sought to undermine our military readiness and steal from our men and women in uniform to waste billions on a wasteful, ineffective wall that Congress on a bipartisan basis has repeatedly refused to fund.  The Supreme Court’s decision tonight to allow President Trump to defy the bipartisan will of the Congress and proceed with contracts to spend billions of dollars on his wall undermines the Constitution and the law”. 

The Supreme Court’s ruling is just a stay of the District Court’s injunction ruling; the case now proceeds to the 9th Circuit (and potentially back to the Supreme Court) for an appeal of the merits of the District Court’s ruling.

While President Trump’s “border wall” is often discussed as a political issue, the various decisions in the case of Sierra Club v. Trump show the importance of litigation in resolving what is also a legal and judicial issue.  Especially given a potentially increasingly conservative Supreme Court on immigration issues, immigrants need to retain qualified immigration counsel, such as the Law Offices of Kameli and Associates, which has successfully represented immigrants for many years, to have the best chance of being successful in immigration-related litigation.  If you need help with any immigration issue, please contact the Law Offices of Kameli and Associates, at taher@kameli.com or 312-233-1000, for representation.