WASHINGTON, D.C. — The Sierra Club and the Southern Border Communities Coalition has asked the United States Supreme Court to lift the stay it placed on an injunction filed last year to halt border wall construction.
The motion to lift the stay was filed July 22 with assistance of the American Civil Liberties Union against President Donald Trump, Secretary of Defense Mark Esper, acting Secretary of the Department of Homeland Security Chad Wolf and Secretary of the Treasury Steve Mnuchin.
It states, “Defendants have spent the past year rushing construction of a border wall that Congress denied and that multiple courts have all found unlawful. The court of appeals has now affirmed the injunction that this Court stayed, but the government has 150 days to seek certiorari. At this juncture, the Court’s stay, far from preserving the status quo, will permit Defendants to complete their project and threatens to deprive Plaintiffs of a remedy. The Court should therefore lift the stay so that it may consider any certiorari petition in the ordinary course.”
“The Trump administration has continued building the border wall despite lower court orders blocking the construction and ruling it illegal,” said Courtney Bourgoin, Sierra Club associate press secretary.
The Supreme Court lifted the injunction stopping border wall construction by the 9th U.S. Circuit Court of Appeals after the Trump administration contested the decision and asked the high court to allow construction to continue while aspects of the case were awaiting determination. Those aspects were: did the plaintiffs have standing to bring the case to court and did the Trump administration break the law by using funding not approved by Congress.
The 9th District Court determined the Sierra Club and the SBCC had standing and their members would be impacted by the border wall.
In June, the district court, in a two to one decision, ruled the Trump administration illegally used $2.5 billion in military funding for building portions of the 30–foot bollard wall along the border in Arizona, California and New Mexico.
That point is made in the new motion that stated, “Chief Judge (Sidney) Thomas found that Congress did not appropriate funds for border wall construction, and that Defendants could not make up the shortfall by transferring billions from the military budget to DHS’s unfunded wall projects. The court of appeals set forth its reasoning that Section 8005 was inapplicable to the border wall expenditures.”
Section 8005 allows the secretary of defense, in the national interest and with the approval of the Office of Management and Budget, to transfer up to $4 billion of working capital funds of the Department of Defense, provided they are not used for those “originally appropriated and in no case where the item for which funds are requested has been denied by the Congress.”
The court of appeals also “found that construction of border wall sections aimed at a civilian law enforcement agency’s counterdrug mission is not a ‘military requirement,’ and Congress limited the use of Section 8005 to such requirements.”
The motion noted the court of appeals also agreed with the district court that “Congress’s broad and resounding denial resulting in a 35–day partial government shutdown must constitute a previous denial for purposes of Section 8005.” The court observed that “surely when Congress withheld additional funding for the border wall, it intended to withhold additional funding for the wall, regardless of its source.”
A portion of the $2.5 billion was used to construct miles of fence across Cochise County’s desert wildlands and across the protected San Pedro River, the lifeline of the San Pedro Riparian National Conservation Area. Hundreds of people voiced strong opposition to the destruction during a peaceful assembly in January.
Since all environmental, tribal and cultural waivers have been granted to the U.S. Customs and Border Protection, the destruction of the historic, fragile desert flats and hills will create untold harm to numerous species of wildlife of all sizes and even those species listed as threatened or endangered, conservation groups insist.
Currently, there is a petition on change.org to stop construction on the San Pedro and it is nearing 1,000 signatures.
CBP started work across the San Pedro riverbed a month ago in spite of public concerns about what the barrier would be. Construction continued with the plan to install a 30–foot tall lighted barrier with gates to open during the monsoon flood season and a bridge so Border Patrol agents can drive across the river.
More than 1,000 officials and scientists and dozens of environmental, tribal and community groups across Texas, New Mexico, Arizona and California opposed the continued construction during the COVID–19 pandemic due to health concerns for the rural communities.
“The Supreme Court must step in and stop the Trump administration’s unconstitutional border wall construction. Misusing military funds has resulted in construction projects that are destroying irreparable and sacred tribal lands, decimating habitat and wildlife refuges, and forever scarring borderland communities. It is past time to halt this wasteful and irreversible damage, ” said Gloria Smith, managing attorney at the Sierra Club in the press release.
Dror Ladin, staff attorney with the ACLU’s National Security Project, said, “The Trump administration has lost in every lower court, but is still rushing to complete the president’s border wall before the Supreme Court can review the merits of this case. If the administration succeeds, there will be no border wall construction left to stop by the time the Supreme Court hears this case. We’re asking the Supreme Court to join the lower courts and put a stop to the president’s destructive wall obsession before it’s too late.”
Requests for comments from defendants were not received by press time.