High Court Allows Border Wall Reprogramming Funding, Construction to Move Forward

Steven D. Schwinn, John Marshall Law School

The Supreme Court late Friday granted the administration's motion for a stay of the district court's permanent injunction, affirmed by the Ninth Circuit, prohibiting the administration from reprogramming funds to build a border wall. The ruling is a significant victory for President Trump. It means that the administration can go ahead with its plans to reprogram funds and build portions of the wall.

This ruling doesn't end the case. But it strongly suggests that any further ruling from the Court will also favor the administration.

The case, Trump v. Sierra Club, involves the Sierra Club's challenge to the administration's reprogramming of $2.5 billion from military accounts to build a border wall. The administration moved to reprogram funds after Congress granted the administration only $1.375 billion (of the $5.7 billion requested by the administration), and restricted construction to eastern Texas, for border wall construction. As relevant here, the administration announced that it would transfer $2.5 billion from Defense Department accounts to the Department of Homeland Security. In order to get the money in the right account, DoD had to transfer funds under Section 8005 of the DoD Appropriations Act of 2019. That section authorizes the Secretary of Defense to transfer up to $4 billion "of working capital funds of the Department of Defense or funds made available in this Act to the Department of Defense for military functions (except military construction)," so long as the Secretary determines that "such action is necessary in the national interest." The funds can be used "for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress." 

The Sierra Club sued, arguing that the transfer violated the law, because wall funding wasn't "unforeseen" and because Congress had previously denied requested wall funding. The district court entered a permanent injunction, and the Ninth Circuit affirmed. The government filed an application for a stay with the Supreme Court.

A sharply, and ideologically, divided Court granted the stay. The Court (the majority comprised of Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh) gave only this explanation in its short opinion: "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." This probably refers to the government's argument that the Sierra Club wasn't within the "zone of interests" protected by Section 8005, and therefore wasn't a proper party to bring the case. It may also refer to the government's argument that the district court and the Ninth Circuit misread the "unforeseen" and "has been denied by the Congress" language in Section 8005. (The government offered a much narrower interpretation of those phrases than the lower courts adopted.)

The Court left the door open for Supreme Court review on a regular writ of certiorari. But given the ruling and alignment in its order granting the stay, it seems unlikely that the Court will rule against the administration.

Justices Ginsburg, Sotomayor, and Kagan wrote (without explanation) that they would have denied the stay. Justice Breyer offered a middle ground: allow the administration to move forward with the contracts it needs to build under its strict timeline, but not allow it to actually begin construction until we get a final say-so from the Court.