Topline
The U.S. Supreme Court will hear a case this term regarding whether President Donald Trump can build his border wall using diverted military funds that were not appropriated by Congress, the court announced Monday, after the high court has twice blocked lower court rulings and allowed the border wall construction to move forward.
A portion of the U.S.-Mexico border wall under construction on Aug. 28, 2019, in Chihuahua State in ... [+]
Key Facts
The Supreme Court will hear arguments in Trump v. Sierra Club over Trump’s border wall funding, after two appeals court rulings struck down border wall construction that was moving forward using $2.5 billion in Department of Defense funding initially earmarked for other purposes.
Though lower courts have ruled against the use of military funds for the wall, the Supreme Court has so far consistently upheld Trump’s border wall construction using the military funds, issuing a stay in 2019 that put a lower court ruling on hold and let border wall construction move forward while the legal challenges against it proceeded.
The Supreme Court then doubled down on that decision in a July 2020 ruling that declined to lift the stay, with both rulings being largely split 5-4 along partisan lines (Justice Stephen Breyer both concurred and dissented in part with the 2019 decision).
In addition to the re-appropriation of military funds, the plaintiffs also argue that the border wall should not be built because it is destructive to the environment and natural habitats along the border, with Breyer noting in his 2019 opinion that the construction would “cause irreparable harm to the environment.”
Key Background
Trump turned to the military for help with his border wall funding in 2019 after Congress refused to provide him the full amount he desired, issuing an emergency declaration in Feb. 2019 over the supposed border wall crisis that allowed him to divert money from other government projects to pay for the controversial wall construction. The Trump administration has marked the border wall funds as being used for the Pentagon’s “Drug Interdiction and Counter-Drug Activities,” claiming that the border wall is necessary “to impede and deny drug smuggling activities.” The Trump administration’s continued diversion of military funds—which it continued in 2020, transferring an additional $3.8 billion in Department of Defense funds to the border wall—has drawn bipartisan criticism, with Rep. Mac Thornberry (R-Texas), the Ranking Member on the House Armed Services Committee, saying the move is “contrary to Congress’s constitutional authority.” “The Department of Defense cannot change [how funding is allocated] in pursuit of their own priorities without the approval of Congress,” Thornberry said in a February statement in response to the Trump administration announcing it would again divert military funding to the wall. “Attempts to do so undermines the principle of civilian control of the military and is in violation of the separation of powers within the Constitution.”
What To Watch For
Border wall construction has been speeding up ahead of the November election, with the Washington Post reporting in September that construction is continuing at an “unprecedented pace” as the president pushes his immigration agenda on the campaign trail. The future of the border wall—and thus the Supreme Court challenge—will hinge on the election, as Democratic rival Joe Biden has said he will halt border wall construction if reelected. The Supreme Court is unlikely to hear the border wall case until after Inauguration Day in 2021, meaning that the case will likely be dropped altogether if Biden is elected, as military funds would no longer be re-appropriated to the border wall construction.
Tangent
The border wall case is one of several high-profile immigration challenges the Supreme Court is set to hear this term. The court announced Monday it would also hear a challenge to Trump’s “Remain in Mexico” policy concerning immigrants seeking asylum, and the court announced last week it will determine whether undocumented immigrants can be included in the U.S. Census count regarding House redistricting.
Further Reading
High Court Lets Construction Continue on Trump’s Border Wall (Bloomberg Law)
Appeals Court Rejects Trump’s Diversion of Military Funds for Border Wall (New York Times)
