Photo: Mani Albrecht, U.S. Customs and Border Protection

President Trump is challenging in the Supreme Court two orders from lower federal courts that froze funding for 100 miles of the President’s border wall because the President took the money from other federal programs and projects without Congress’ consent based on his border “emergency” declaration.  On Friday, the Associated Press reported that the Administration appealed to the Supreme Court to allow them to move the $2.7 billion in Defense Department counterdrug funding that was going be used for on high-priority sections of border wall in Arizona, California and New Mexico.  The American Civil Liberties Union (ACLU) filed challenges to the emergency funding move on behalf of The Sierra Club and The Southern Border Communities Coalition.

Why This Matters:  With the border wall and President Trump’s immigration policy at the center of the political struggle between the Republicans and Democrats, the Supreme Court is stuck in the middle again.  Justice Elena Kagan late last Friday gave the environmental groups a week to respond in writing to the Trump administration’s appeal.  One of the Administration’s key arguments against the funding freeze is that environmental groups (as opposed to immigrants rights groups) do not have the legal right to bring these lawsuits — these groups and their members are not “harmed” by the wall.  However, as we have explained in prior stories, the border wall is an environmental disaster, for example placing unnecessary risks on many endangered species whose movements would be blocked, not to mention recreational activities on the border that would be impeded by the wall.  The Administration wants the wall constructions to move ahead even though it is not clear that they have the legal right to use the funds — that seems like putting the cart ahead of the horse to us.

But It’s An Emergency – or So They Say.

According to our friends at SCOTUSblog, the Trump Administration argued in its Supreme Court filing that the Sierra Club’s “interests in hiking, bird watching, and fishing in designated drug-smuggling corridors do not outweigh the harm to the public from halting the government’s efforts to construct barriers to stanch the flow of illegal narcotics across the southern border.”  The government requested that the Supreme Court rule by July 26th on their request because the funds at issue will “expire” if they are not committed by the time the federal government’s fiscal year ends on September 30.

But Isn’t The Supreme Court In Recess?

Yes, the Supreme Court finished its work and is on hiatus until the first Monday in October.  But when “emergencies” arise like this one, the Justices take turns making rulings like the one made by Justice Kagan in this case.  This case arises from an appeal in the 9th Circuit (the West Coast) for which Justice Kagan has responsibility.  It is interesting that this is the immigration case now before the Supreme Court — this time last week, it was the citizenship question on the Census that the Administration was battling.

To Go Deeper: Check out the SCOTUSblog coverage of the case here.

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