By Leah Litman and Kyle Skinner/TakeCare
It was just over a month ago that the Supreme Court stayed the injunction prohibiting President Trump from reappropriating funds to construct the border wall. The stay has largely gotten lost in the never-ending cycle of Trump administration news – and like many of those stories, this one dropped late on a Friday evening: By a 5-4* vote, with the conservatives in the majority, the Court allowed the president to reappropriate funds that were originally set aside for the military. The decision will allow construction on the wall to begin.
Since this case was neither fully briefed nor argued, the Court did not issue a full opinion explaining its decision. Instead, the Court released a summary order suggesting there were several reasons for granting the stay. But it provided only one reason to think that the challengers would ultimately lose: “[T]he plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005, the statutory provision that allows the Defense Secretary to transfer funds, when doing so ‘is necessary in the national interest,’ and the funds will be used ‘for military functions (except military construction).'”
Justices Ginsburg, Sotomayor, and Kagan would have denied the stay request entirely. And the asterisk to the 5-4 vote breakdown is that *Justice Breyer would have stayed the decision announcing the injunction, but only with respect to the government’s ability “to finalize the contracts at issue,” “not to begin construction” on the wall.
The Court’s decision is troubling for many reasons. We will focus on just two of them.
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Posted on September 13, 2019
