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Supreme Court allows Trump administration to shift Pentagon funds to border wall

Opponents vow 'This is not over.'

In a 5-4 decision issued Friday, the Supreme Court dismissed a lower court's move to block the Trump administration from using $2.5 billion siphoned from Defense Department funding to build border barriers in Arizona, California, and New Mexico. 

In an unsigned opinion, the court's conservative justices said that the government has "made a sufficient showing at this stage" that the Sierra Club and the Southern Border Communities Coalition, which sued in March, have "no cause of action to obtain a review" of the Defense secretary's actions, sending the case back to the 9th Circuit Court of Appeals.

The ACLU said opponents of Trump's move will continue to press the case at the 9th Circuit, which has yet to rule on the merits of the suit.

This removes a lower court's order, issued three weeks ago, that blocked the Trump administration from using military spending to build hundreds of miles of fencing in three states. 

Earlier this month, a three-judge panel at the 9th Circuit Court refused to remove an injunction made by U.S. District Judge Haywood S. Gilliam, who ruled on May 24 that the plaintiffs "have shown a likelihood of success" in their lawsuit against the Trump administration for attempting to use a section of an appropriations act voted into place by Congress to "reprogram" around $2.5 billion from Defense Department funds to the Department of Homeland Security to build border barriers in California, Arizona and New Mexico. 

Ultimately, the Trump administration wants to use $8.1 billion in defense dollars to build more than 200 miles of border barriers. In February 2019, DHS identified nearly a dozen projects that it wanted to build, including five projects in the Tucson Sector and three in the Yuma Sector. This would include wall construction along environmentally sensitive areas, including the Cabeza Prieta Wildlife Refuge, and a segment across the San Pedro watershed east of Nogales. All told, DHS wants to build 213 miles of wall with segments reaching up to 30 feet high, along with patrol roads and lighting.

At issue is how a section of this winter's budget agreement allows the secretary of Defense to move money in the military budget. Section 8005 allows the shifting of money meant for military purposes if that money is "for higher priority items, based on unforeseen military requirements” and “the item for which funds are requested has [not] been denied by the Congress." However, Congress specifically appropriated money for construction of 65 miles in Texas, and the Sierra Club and others have argued that by using Section 8005 and an emergency declaration, the White House is violating the Constitution.

'This is not over'

The ACLU said on Friday that it would seek to "expedite proceedings" before the 9th Circuit Court of Appeals and work to "restore a permanent block on border wall construction using unauthorized military funds." 

"This is not over. We will be asking the federal appeals court to expedite the ongoing appeals proceeding to halt the irreversible and imminent damage from Trump's border wall. Border communities, the environment, and our Constitution’s separation of powers will be permanently harmed should Trump get away with pillaging military funds for a xenophobic border wall Congress denied," said Dror Ladin, a staff attorney with the ACLU. 

"Despite tonight’s Supreme Court order, which is temporary and limited to the $2.5 billion in military funds, the matter will go back to the Ninth Circuit, where the government had initially appealed a district court order blocking wall construction," the ACLU said. "The Ninth Circuit denied the government’s motion to temporarily lift the block, but had not completed consideration of arguments on the merits of the government’s appeal when the government asked the Supreme Court to temporarily lift the block." 

"Today’s decision to permit the diversion of military funds for border wall construction will wall off and destroy communities, public lands, and waters in California, New Mexico, and Arizona," said Gloria Smith, an Sierra Club attorney. "We've seen the destruction that the ever-expanding border wall has inflicted. The Sierra Club will continue to fight this wall and Trump’s agenda through and through." 

Vicki B. Gaubeca, the director of the Southern Border Communities Coalition said that the White House's "desire" to divert military funds for a "deadly and dangerous wall" would only "further degrade the binational character of our region and threaten the quality of life of the 15 million people who call the southern border home." 

"Trump’s attempts to sidestep Congress are a direct assault on the checks and balances that represent the bedrock of our democracy. We will continue to push against the further militarization of our communities and for a new border vision that expands public safety, protects human rights, and welcomes all people to our region," Gaubeca said. 

Justice Stephen Breyer issued his own opinion, agreeing in part with the conservative majority and dissenting in part. Breyer argued that the government should be able to continue issuing contracts before a Sept. 30 deadline, but should not be able to begin construction while the lawsuit was ongoing. 

"But there is a straightforward way to avoid harm to both the Government and respondents while allowing the litigation to proceed," Breyer wrote. "Allowing the Government to finalize the contracts at issue, but not to begin construction, would alleviate the most pressing harm claimed by the Government without risking irreparable harm to respondents. Respondents do not suggest that they will be harmed by finalization of the contracts alone, and there is reason to believe they would not be," he wrote. 

"I can therefore find no justification for granting the stay in full, as the majority does. 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 his decision, Gilliam wrote that the "crux" of the case is that the White House's methods for funding the "border barrier construction are unlawful." 

Following his decision, Trump administration lawyers appealed and in June, the 9th Circuit agreed to hear oral arguments. 

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In their 48-page decision, appellate court Judges Richard Clifton and Michelle Friedland wrote that there was a "strong likelihood" that the Sierra Club and others "will prevail in this litigation, and Defendants have a correspondingly low likelihood of success on appeal." 

"As for the public interest, we conclude that it is best served by respecting the Constitution’s assignment of the power of the purse to Congress, and by deferring to Congress’s understanding of the public interest as reflected in its repeated denial of more funding for border barrier construction," the judges wrote. Judges Clifton and N.R. Smith were appointed by President George W. Bush. Judge Friedland was appointed by President Barack Obama.

President Trump has made "numerous requests to Congress" for border wall construction, and after an extended government shutdown, agreed to give $1.375 billion for border barriers, specified for "construction of primary pedestrian fencing...in the Rio Grande Valley," they noted.

But, by March 25, former acting Secretary of Defense Patrick Shanahan approved the transfer of $1 billion in funds from DoD to DHS for three projects, the Yuma Sector Project 1 and Yuma Sector Project 2 in Arizona, and the El Paso Sector Project 1 in New Mexico. 

Barnard Construction Co. Inc., of Bozeman, Mont., was awarded $187,000,000 to design and build primary pedestrian wall replacements with a planned completion date of Sept. 30, 2020. 

Later, on May 8, Shanahan said that he would allocate another $5 billion for projects near San Diego and El Centro, as well as projects in the Yuma and Tucson sectors, and at least 38 companies bid for the contracts. The next day, Shanahan siphoned another $1.5 billion for four other projects, the justices wrote. 

Shanahan later resigned removed from his acting position, and replaced by Dr. Mark Esper who was confirmed this week. 

The efforts to spend this money is "not consistent with Congress’s power over the purse or with the tacit assessment by Congress that the spending would not be in the public interest," the justices for the appellate wrote. They also rejected claims that by keeping Gilliam's injunction in place it would cost the U.S. government money. 

"When DoD awarded contracts on April 9 for El Paso Project Sector 1, and May 15 for Yuma Project Sector 1 and Tucson Project Sectors 1-3, DoD knew this litigation was pending and that the district court had been asked to enter a preliminary injunction," the justices wrote. "Placing significant weight on financial obligations that Defendants knowingly undertook would, in effect, reward them for self-inflicted wounds." 

In his dissent, Judge N. Randy Smith argued that the other judges were taking an "uncharted and risky approach—turning every question of whether an executive officer exceeded a statutory grant of power into a constitutional issue." Smith argued that the Trump administration officials are likely to succeed on the merits, arguing that the Sierra Club and others do not have a cause of action to file a constitutional claim and that the majority was now analyzing the case "on the fly." 

He also argued that the Administrative Procedures Act—a statutes that guides how the Executive Branch can implement a law, and requires a public comment period and public information before a law can be implemented—was the correct way for organizations like the Sierra Club to file suit. 

"As to the public interest, Defendants argue that their interests in preventing drug trafficking easily outweigh Plaintiffs’ aesthetic, recreational, and generalized environmental injuries," Smith wrote. "In the narrow context of this stay motion, Defendants are correct. Even though environmental injuries may be significant in the long term, the injunction will only be stayed for a short period." 

He argued that Gilliam's injunction would harm the U.S. government, but that "on the other hand, the irreparable harm to Plaintiffs during this relatively short period (if a stay is granted) is less clear." 

The Trump administration has told the court that the projects "are needed to protect national security and must go forward even if there is a possibility that a merits panel may eventually order them to remove whatever was constructed while a stay was in place. This is not the sort of determination that courts will ordinarily second guess," he said. 

"It makes little sense to tie Defendants’ hands while the appellate process plays out, especially given Plaintiffs’ lack of a viable claim and given the national security considerations present in this case," Smith wrote. 

After the appellate court decision, the Trump administration again appealed, arguing in a filing issued by Solicitor General Noel Francisco that the group's lacked the standing to file suit, and even if they were the "proper parties to enforce the conditions in Section 8005 "they misread the statute." 

"Section 8005 authorized these transfers" for the Defense Department "to meet an unforeseen military requirement to support DHS." And, this expense "was not denied by Congress simply because Congress elsewhere appropriated less funding for DHS to construct a border wall than DHS had requested," Francisco wrote. "The balance of equities also favors a stay, given the significant ongoing harm the injunction causes to the government’s drug-interdiction efforts." 

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Members of the Tohono O'odham Nation argued in their own court briefing that the nation "strongly opposes construction of a physical wall on its southern boundary," which would include nearly 43-miles of new border barriers under the Trump administration's plan. 

Attorney General Joshua O. Rees wrote that the Border Patrol's three planned projects in the Tucson Sector will "cause irreparable harm to natural and cultural resources of significant importance to the Nation, both in these sensitive areas and on the Nation’s Reservation." 

"The construction of the border walls in Tucson Sector Project 1 and 2 areas will also substantially increase migrant traffic on the Nation’s Reservation lands, and exacerbate the impacts that the Nation experiences from this traffic and the cost to the Nation to address it," Rees wrote.

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Paul Ingram/TucsonSentinel.com

The 'bollard' barriers west of Lukeville, Arizona that may be replaced by a 30-foot-high wall as part of the Trump administration's plans to use billion in Defense Department funding.