Brief in Recess: July 26

Remember when I remarked in my final brief for O.T. 2018 that the Supreme Court is unlikely to grant any cases or issue any decisions until it is back in session in October? Oops. To quote Daniel Day-Lewis’ character in Lincoln: “I’ve found that prophesying is one of life’s less-profitable occupations.” I should have listened.

Late Friday night, by a 5:4 majority, the Supreme Court stayed a June ruling issued by a federal district court in California. The district court had issued a permanent injunction against the Trump administration, barring it from using any of the nearly $2.5 billion that had been transferred to the Department of Defense’s counternarcotics fund to pay for the construction of the border wall between the United States and Mexico. The Administration appealed that ruling to the Ninth Circuit Court of Appeals, but also sought a stay of the district court’s injunction. The Supreme Court’s order permits the Administration to use those funds for border wall construction unless or until the Ninth Circuit Court of Appeals rules on the Administration’s appeal of the full case. For more on the Supreme Court’s decision, here’s a quick brief.


In February, following the longest partial government shutdown in history, President Trump declared a national emergency on the U.S.–Mexico border. Congress had refused to meet the President’s demands for border wall funding. As a result, Trump announced he would pursue additional funds on his own under the National Emergencies Act. To do this, Trump first asserted in his emergency declaration that the border had become “a major entry point” for “illicit narcotics.” Next, pursuant to §8005 of the 2019 DoD Appropriations Act, (now-former) acting Defense Secretary Patrick M. Shanahan moved approximately $2.5 billion from the Department of Homeland Security to the counternarcotics fund of the Department of Defense (DoD). Once that was done, Trump then sought to use that $2.5 billion to fund the construction of the border wall in three specific places under his emergency declaration. It was this action that would give rise to this case, Trump v. Sierra Club.

Two private environmental groups supported by the ACLU filed suit, seeking an injunction that would enjoin the Trump administration (“the Administration”) from using any of the $2.5 billion for border wall funding. In May, the federal district court in Oakland, California agreed and issued a preliminary injunction, expressing doubt that the DoD had properly transferred the $2.5 billion under the 2019 DoD Appropriations Act and noting that construction of the border wall would “irreparabl[y] harm” the environmental groups. In June, the district court issued a permanent injunction.

The Administration appealed to the Ninth Circuit Court of Appeals, seeking both a stay of the permanent injunction and a full review of the district court’s disposition. But on July 3, a Ninth Circuit panel declined to stay the injunction without touching on the merits of the case. In other words, the appeals court declined to allow the Administration to use any of the $2.5 billion for border wall construction while the litigation was ongoing. The Administration then appealed to the Supreme Court, seeking a stay of the permanent injunction at least while the case was pending before the Ninth Circuit.

In its application before the Supreme Court, the Administration advanced a number of arguments as to why the Court ought to stay the permanent injunction. Of crucial importance were the following: First, litigation—and the resolution thereof—is not exactly quick. The $2.5 billion in funding is only good until the end of the fiscal year on September 30, and it is not likely Sierra Club will be resolved on the merits by then. So, the argument goes, the permanent injunction actually operates as a final judgment and would cause the Administration “irreparable harm,” thus warranting a stay. As an aside, the Administration also pointed out that it cannot simply put the shovel in the ground and immediately begin construction were it free to do so. Instead, it must enter into a number of construction contracts, all of which take weeks to finalize. And second, the Administration contended that the private environmental groups do not have standing to bring this suit. Specifically, the Administration submitted that Respondents do not have the authority to seek review of acting Secretary Shanahan’s decision to move the funds in accordance with §8005 of the 2019 DoD Appropriations Act.

Last night, in a one-paragraph, unsigned order, the Supreme Court agreed with the Administration and stayed the permanent injunction pending appeal in the Ninth Circuit. The five-Justice majority—made up of Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh—took pains to note that the Administration had made “a sufficient showing at this stage” that the environmental groups “have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005.”

This means that while the case is pending before the Ninth Circuit, the Administration may begin tapping into the $2.5 billion and start construction of the wall in three particular areas along the border. There are a few different scenarios that could take place after the Ninth Circuit issues its disposition: If the Ninth Circuit rules against the Administration, the stay would end, the injunction would go back into place, and the Administration would be barred from using whatever is left of the $2.5 billion. (Of course, the Administration may still petition the Supreme Court for review.) If the Ninth Circuit rules for the Administration, then the stay would no longer be needed and the Administration could continue spending the $2.5 billion for construction of the wall. For this outcome, the environmental groups could always appeal to the Supreme Court. But given the fact that the five-Justice majority specifically highlighted the Administration’s standing argument, it seems the groups would face a significant uphill battle.

Justices Ginsburg, Sotomayor, and Kagan dissented and would have denied in full the application for a stay.

Justice Breyer penned a two-page opinion concurring in part and dissenting in part. In a nod to the Administration’s point on which the majority relied, Breyer acknowledges that Sierra Club raises novel and important questions about the ability of private parties to enforce Congress’ appropriations power.” Nonetheless, the issue before the Court at this juncture is simply whether to stay the permanent injunction. To answer that question—in layman’s terms—the Court must determine which party would be harmed more: the Administration if the application for a stay is denied, or the environmental groups if the application is granted.

“If we grant the stay,” Breyer says, the Administration “may begin construction of a border barrier that would cause irreparable harm to the environment and to respondents.” But “[i]f we instead deny the stay,” he writes, “it is the [Administration] that may be irreparably harmed. The [Administration] has represented that, if it is unable to finalize the [construction] contracts by September 30, then the funds at issue will be returned to the Treasury and the injunction will have operated, in effect, as a final judgment.”

The rest of the court took sides: The majority played Red Rover with the Administration, while Ginsburg, Sotomayor, and Kagan went with the environmental groups. But Breyer straddles the fence, arguing that there “is a straightforward way to avoid harm to both the [Administration] and respondents while allowing the litigation to proceed.” That solution hinges on the contracts. “Allowing the [Administration] to finalize the contracts at issue, but not to begin construction,” Breyer writes, “would alleviate the most pressing harm claimed by the [Administration]” (loss of the funds after September 30) “without risking irreparable harm to respondents” (construction of the wall).

Thus, Breyer would not grant the application for a stay in full, as the majority does. Instead, Breyer would stay the injunction “only to the extent that [it] prevents the [Administration] from finalizing the contracts or taking other preparatory administrative action.” He would leave the injunction in place only “insofar as it precludes the [Administration] from disbursing those funds or beginning construction.”

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