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The Supreme Court’s ruling on the border wall leaves unanswered questions

The Supreme Court’s ruling on the border wall leaves unanswered questions

“WOW!”, President Donald Trump tweeted on July 26th. “Big VICTORY on the Wall”. The Supreme Court’s order earlier that evening in Sierra Club v Trump was indeed a favourable result for the president. His quest to start building a fence along America’s southern border using money Congress appropriated for other projects got a shot in…


“WOW!”, President Donald Trump tweeted on July 26th. “Big VICTORY on the Wall”. The Supreme Court’s order earlier that evening inSierra Club v Trumpwas indeed a favourable result for the president. His quest to start building a fence along America’s southern border using money Congress appropriated for other projects got a shot in the arm from five justices—with the four liberal justices in dissent. “Big WIN for Border Security and the Rule of Law!”, Mr Trump cheered.

The matter had arrived in the justices’ hands five months after Mr Trump announced he would declare a national emergency to secure roughly $8bn for construction of his long-promised security fence. Not content with Congress’s allocation of $1.375bn for 55 miles of fencing, Mr Trump said he would grab funds from three other pots—money budgeted to the Department of Defence (DoD) for military construction and anti-drug projects and cash flowing to the Treasury from civil-asset forfeitures. Eight lawsuits challenging these “reprogramming” moves soon arose. One was dismissed; most are pending. But proceedings inSierra Club v Trumphave moved quickly, and in May a federal judge in California froze the transfer of $2.5bn from the DoD while litigation continues. After the Ninth Circuit Court of Appeals sided with the lower court on July 3rd, the Trump administration ran to the Supreme Court.

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In its filing on July 17th, the government asked the justices to lift the lower-court stay by July 26th. That’s just what the Supreme Court did in its brief, unsigned order. The Sierra Club and another environmental organisation, the court wrote, “have no cause of action” to ask the courts to review whether the acting secretary of defence complied with Section 8005 of the federal code when he reprogrammed funds from military personnel salaries and benefits to wall construction. In other words, the plaintiffs are not legally entitled to block the diversion of funds from one project to another. The four liberal justices—Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor—disagreed. All would have prevented the government from breaking ground on the partition, for now, though Justice Breyer, ever the aspirational consensus-builder, would have permitted it to “finalis[e] contracts” as long as actual fund disbursement and wall construction did not begin. Nobody but Justice Breyer would have taken this middle path, and none of the other dissenters explained why the lower-court fund freeze should remain in place.

The upshot of the order is clear: while the legal fight continues in the courts below, the Trump administration has the blessing of a slim Supreme Court majority to get going on the wall.

But the order leaves two important questions unanswered. Firstly,whythe environmental organisations are ineligible to sue? Is it because, as the government claimed, their “interests in hiking, birdwatching and fishing” pale in comparison to the Trump administration’s drive “to stanch the flow of illegal narcotics across the southern border”? Or is it because private parties, generally speaking, cannot challenge government reappropriations? If the five conservative justices hold the first view, different plaintiffs with more concrete and less bucolic interests could plausibly raise a claim against the diversion of funds. This seems to be the position of Judge Randy Smith, a dissenter from the Ninth Circuit ruling, who wrote that while “aesthetic, recreational, and generalised environmental interests” do not count, truly “economic interests” may. But if the Supreme Court majority believes the latter, more sweeping position, there may be no “proper plaintiffs” to oppose the emergency wall funding at all.

A second uncertainty looms. In the spare, 135-word order, the court appended five words implying there aremultiplebases for the Trump administration’s request for a stay of the unfavourable lower-court rulings. “Among the reasons is that…” prefaces the sole reason given: that the plaintiffs lack the ability to bring the suit at all. But the order makes no mention—and gives no hint—of what those other reasons might be. It is not unusual for procedural orders in emergency applications to leave readers unsatisfied: these documents are more succinct and much less expansively delineated than opinions in cases where the court considers a full round of briefs and hears oral argument. But it is unusual—and seems questionable—for the justices to tell readers that there are considerations at play in their deliberations that they are hiding from public view.

Perhaps these lacunae are meant to unsettle plaintiffs inSierra Cluband the half-dozen other lawsuits challenging Mr Trump’s emergency cash transfer by executive fiat. They could be a sign the five Republican-appointed justices—two of whom were picked by Mr Trump himself—will be unreceptive to the suits if and when they consider them fully. But even if the order was not intended to send these messages, its elusiveness is unwelcome. The ambiguity leaves a host of plaintiffs—ranging from the House of Representatives to a government ethics watchdog to El Paso County in Texas—wondering what kinds of claims might pass muster. A rather fraught dose of guidance from America’s highest court.

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