WASHINGTON — The US Supreme Court ruled Friday that the Trump administration can move ahead with plans to use $2.5 billion in military funding to build new barriers at the US–Mexico border.
A majority of the justices, representing the court’s more conservative wing, found that the administration had made a “sufficient showing” at this stage that it was likely to win as the case unfolds in the lower courts. Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, and Stephen Breyer dissented and would have kept in place an injunction blocking construction while the litigation went forward.
The Supreme Court’s order covers just over a third of the $6.7 billion that the Trump administration redirected from other sources to pay for construction at the southern border. The $2.5 billion at issue before the US Supreme Court came from a US Department of Defense fund intended for counter-drug activities.
The administration’s ability to use the rest of the money President Donald Trump announced it was tapping in February — $3.6 billion intended for military construction projects, which required Trump to invoke a national emergency, and $600 million from the Treasury Forfeiture Fund — remains under litigation.
In the one-paragraph order on Friday, the majority of justices concluded that the Justice Department had shown at this point that the groups that sued didn’t have a “cause of action” to challenge the Defense Department’s reprogramming of the counter-drug money — that is, that the law didn’t give them a way to bring this type of challenge to an action by the Defense Department in the first place.
The order didn’t provide any other analysis or details. A district court judge in California had entered a permanent injunction blocking the administration from using the counter-drug funds, prompting the Trump administration to ask the US Court of Appeals for the 9th Circuit to lift that injunction while it pursued an appeal. When the 9th Circuit denied that request, the administration went to the Supreme Court with the same ask.
The case will now go back to the 9th Circuit, where the parties can continue to litigate on the merits of the case, but in the meantime, the administration will be able to start using the $2.5 billion to build border barriers. The order also signals how the Supreme Court is likely to rule if the case comes back up for a full hearing after the 9th Circuit proceedings are finished.
Trump swiftly responded to the decision with a tweet, declaring the order a “Big VICTORY on the Wall.”
The American Civil Liberties Union represented the two groups that brought the challenge, the Sierra Club and Southern Border Communities Coalition. In a statement, attorney Dror Ladin said they would continue to press their case in the 9th Circuit.
“This is not over,” Ladin said. “We will be asking the federal appeals court to expedite the ongoing appeals proceeding to halt the irreversible and imminent damage from Trump’s border wall. Border communities, the environment, and our Constitution’s separation of powers will be permanently harmed should Trump get away with pillaging military funds for a xenophobic border wall Congress denied.”
Justice Department spokesperson Alexei Woltornist said in a statement, “We are pleased that the Supreme Court recognized that the lower courts should not have halted construction of walls on the southern border. We will continue to vigorously defend the Administration’s efforts to protect our Nation.”