People For the American Way

Trump Justices Cast Key Votes to Allow Construction on Border Wall: Confirmed Judges, Confirmed Fears

News and Analysis
Trump Justices Cast Key Votes to Allow Construction on Border Wall: Confirmed Judges, Confirmed Fears
School kid decorations on the US to Mexico border wall in Arizona. Photo courtesy of Shutterstock

“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.

On July 26, in an unsigned order in Trump v. Sierra Club, the Supreme Court voted 5-4 to allow the Trump administration to begin using $2.5 billion in Pentagon funds to build Trump’s border wall along the U.S. and Mexico border, even as the litigation against it continues. The Court reversed lower court opinions that had stopped construction of the wall to prevent irreparable injury, which Justice Breyer explained in dissent is threatened by the Court’s order. Trump justices Neil Gorsuch and Brett Kavanaugh were critical to the 5-4 outcome.

The Sierra Club and Southern Border Communities Coalition filed one of several lawsuits in February challenging the border wall. The suit contends that the use of Pentagon or other funds to build the wall was improper, notwithstanding Trump’s emergency declaration, and would cause serious environmental and other harm. After extensive briefing and oral argument, a federal judge in California issued in May a preliminary injunction against wall construction while the litigation is pending, backed up by a 55-page opinion. The court issued a permanent injunction against the wall toward the end of June.

The Ninth Circuit Court of Appeals denied the government’s motion to stay the district court’s injunction in early July in a 2-1 opinion. In more than 60 pages, the majority explained that plaintiffs were likely to prevail on their contention that diverting funds for the wall violates the law, as reflected in Congress’ clear direction to prevent funds it appropriated from being used for that purpose, and that the balance of hardships clearly favored maintaining the injunction. The majority spent some 20 pages explaining why the plaintiffs had a “cause of action” or legal basis to sue.

The government asked the Supreme Court to stay the lower court decision on July 12 and the 5-4 majority of Chief Justice Roberts and Justices Gorsuch, Kavanaugh, Thomas, and Alito agreed two weeks later. The majority issued only a one-paragraph unsigned order; its only explanation was a phrase claiming that the government had made a “sufficient showing” that the plaintiffs have no “cause of action” to contest the diversion of funds for the wall.

All four remaining justices dissented from the majority’s order that construction of the wall can proceed while the district court’s permanent order is being appealed. Justice Breyer wrote a separate opinion explaining that his dissent was limited to the use of funds to start actual construction of the wall and that he would have agreed to allow the government to finalize contracts concerning wall construction “but not to begin construction.”

Regardless of the justices’ preliminary views on which side would win the case, Breyer explained, the key issue was the “balance” of harm that each side would suffer if the stay was granted, an issue that the majority did not even address. Breyer’s compromise would “alleviate the most pressing harm claimed” by the government, he explained, since it would obligate the funds for the wall and prevent them from being “returned to the Treasury” at the end of the fiscal year on September 30. At the same time, Breyer went on, allowing actual construction “would cause irreparable harm to the environment” and other interests, as the lower courts had found.

But not a single justice in the majority was willing to adopt Breyer’s compromise. Instead, despite saying nothing about irreparable injury, the 5-4 majority simply granted all of the government’s request. This and other cases challenging the wall will continue, and will likely reach the Court again. But in the meantime, the 5-4 majority’s stay decision, on which Gorsuch and Kavanaugh cast crucial votes, will cause “irreversible and imminent damage” to immigrant communities, our environment, and to all of us. Especially amid Trump’s incessant anti-immigrant attacks, Americans deserve a Supreme Court that will check executive power, not rubberstamp it.


border wall, Brett Kavanaugh, Confirmed Judges Confirmed Fears, environmental justice, Neil Gorsuch, Sierra Club, southern border, Supreme Court