Notice & Comment

If Nobody Has Standing to Challenge Building the Wall, Is It Still Likely Illegal?

Recently, the U.S. Supreme Court issued an order staying an injunction that prevented the federal government from using roughly $2.5 billion to build a wall along the border with Mexico. This has led to the unusual situation where every judge to examine the legality of using the funds has found the use illegal, yet nobody has been found to have standing to bring a suit. Despite this recent Supreme Court decision, it is still likely that President Trump cannot use the funds to build the wall.

President Trump has announced that he wishes to use up to $2.5 billion of funds from the Support for Counterdrug Activities account to pay for a wall. As I have previously explained, the account no longer has money. As such, President Trump needed to transfer funds from other parts of the military budget into the account. However, Section 8005 of the Department of Defense Appropriations Act, 2019 and 10 U.S.C. § 2214 likely precludes the transfer of funds into the account.[1]

Every judge who has examined the legality of transferring military funds to build the wall has found the transfer to be illegal. Specifically, the Northern District of California issued a preliminary injunction preventing President Trump from transferring funds to build the wall. When the 9th Circuit Court of Appeals reviewed the injunction, a divided panel upheld the order. More importantly, the dissenting judge did not examine the merits of the case even though the majority opinion did. Instead, the dissent was limited to explaining why the plaintiffs did not have standing to bring the suit. Similarly, the District Court for the District of Columbia rejected a suit by the U.S. House of Representatives on standing grounds without reaching the merits of the legality of transferring military funds to build the wall.

Likewise, the Supreme Court’s decision to stay the Northern District of California injunction does not rest upon the merits of the case. The Court simply held that “Among the reasons [it granted a stay] is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005.” In other words, the Court held that the Sierra Club and Southern Border Communities Coalition likely do not have standing. While the “among other reasons” could imply that the Court was willing to make a finding on the merits but simply opted not to do so, it is just as likely that five justices could not reach consensus on any issue except standing or that the reference referred to the standards for granting an injunction.

After the Court’s ruling, several potential plaintiffs could still be found to have standing. First, a lawsuit by a group of states is still pending in the Northern District of California. The district court had not issued an injunction in that case as the order would be duplicative with its previous injunction for the Sierra Club and Southern Border Communities Coalition. Now that the Supreme Court has stayed the injunction for the Sierra Club and Southern Border Communities Coalition, the states may proceed with seeking their injunction and they may be found to have standing. Second, the District Court for the District of Columbia’s holding that the U.S. House of Representative does not have standing is still under appeal and could be reversed. Third, a future party (such as those who would lose out on funding from the transfer or a property owner impacted by eminent domain) could have standing to bring suit. Once standing is established, the 9th Circuit’s reasoning as to why transferring military funds to build the wall is illegal will still apply. As such, courts will likely issue an injunction for any party held to have standing.

[1] Courts have not yet examined the legality of using national emergency authority as the issue is not ripe. Although President Trump has issued a national emergency declaration, he has not yet tried to use the funds from a national emergency declaration to build the wall.

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