The Supreme Court handed down a Friday evening order effectively permitting President Trump to reappropriate $2.5 billion dollars from a pool of money intended to support anti-drug activities to construction of a Mexican border wall. The case is Trump v. Sierra Club.
Last May, a federal court blocked this transfer of funds, noting that a federal law which sometimes permits the executive to reallocate such funds applies only to “unforeseen military requirements.” Whatever else may be said of the merits of building a border wall, the alleged need for it is not “unforeseen,” as Trump’s been talking about building such a wall for years.
The Supreme Court’s order on behalf of its five Republican members is brief, and does not reach the merits of whether Trump acted lawfully. Instead, it stays the lower court opinion, holding 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.” That is, these particular plaintiffs likely do not have the right to challenge this particular transfer of funds.
The court’s four Democratic appointees all joined an opinion by Justice Stephen Breyer, which expresses no view on whether these plaintiffs can sue. Instead, Breyer writes that the appropriate course would be to issue a partial stay that allows the government to seek contractors to build the wall, but that prevents funding from being distributed until the courts have more time to consider the case.