The Supreme Court ruled Friday, in a 5-4 partisan decision, that President Donald Trump could go ahead with his plans to build a multi-billion dollar wall along the U.S.-Mexico border.
The court order marks the second time Trump v. Sierra Club he came before the judges and Friday’s decision says as much about the unusual deference this court gives Trump as on the wall itself.
The case first came to the court in late July 2019, after a lower federal court blocked the Trump administration’s attempt to transfer $ 2.5 billion that Congress has earmarked for military pay, the training and similar issues related to staff building the wall. The administration claims that it is authorized to make a statute that allows the Secretary of Defense to transfer military funds “for higher priority items based on unforeseen military requirements”
But, as several lower court judges have pointed out, there is nothing “unexpected” in the circumstances that led Trump to build this wall. Trump has campaigned for plans to build a border wall since 2015. In late 2018 and early 2019, Trump even shut down much of the federal government due to a disagreement over how much money should be earmarked for pay the wall.
So Congress didn’t deny Trump much of the funding he sought because he didn’t foresee an emerging problem that could only be solved by a border wall. He was well aware of Trump’s case for additional funding for his wall and dismissed that case.
However, in its July 2019 order, the Supreme Court voted almost entirely along the lines of the party to block an order from the lower court that prevents the transfer of funds. This order was short, but the Court concluded that “the Government has demonstrated at this sufficient stage that the plaintiffs have no reason to take action to check the interim Secretary’s compliance with Section 8005” – which means that the details plaintiffs who brought this case probably has no right to challenge this particular transfer of funds.
In theory, this means that a different party may be able to challenge Trump’s decision to transfer funds, although it is far from clear if there is a potential party that could satisfy this Supreme Court.
The Supreme Court often ignores its ordinary procedures for Trump’s benefit
Technically, the Sierra Club the dispute remains pending. The July 2019 order simply suspended the lower court’s decision to block the transfer of military funds until later Sierra Club winds through the entire appeal process. Friday’s order rejects a request from Sierra Club plaintiffs to revoke the stay imposed last year.
The difference between last year’s order and that delivered on Friday turns into a partial dissent written by Judge Stephen Breyer in the iteration of the 2019 case. As Breyer explained, a party seeking suspension of a lower court opinion it must demonstrate more than just a “just perspective” that the Supreme Court will agree with its arguments. That part must also demonstrate “a probability that irreparable damage results from the denial of a stay”.
As Breyer noted in 2019, “the government has stated that if it is unable to finalize the contracts by 30 September, the funds in question will be returned to the Treasury.” Therefore, he argued, a limited stay could be justified to prevent this money from being returned. “Allowing the government to finalize the contracts in question, but not to start construction, would alleviate the most urgent damage required by the government without risking irreparable harm for” the plaintiffs.
A year later, however, such a limited stay is no longer necessary. As Breyer notes in a dissent on Friday’s order, “the government has apparently finalized its contracts, avoiding the irreparable damage it claimed to seek a stay first.” Since there is no longer any likelihood that the government will face irreparable harm in the absence of a stay, Breyer argues for dissent, the stay should increase.
All this discussion on the procedural position of the Sierra Club the dispute and the rules governing the suspension of the orders of the lower court of the Supreme Court may seem esoteric, but the order of the Court in Sierra Club it is part of a much larger model. The Roberts Court rarely enforces its own rules governing the stays of lower court opinions whenever the Trump administration requests such suspension.
Indeed, last February, justice Sonia Sotomayor accused many of her colleagues of “putting a thumbs up on the Trump administration’s behalf” every time the administration seeks relief from an order from the lower court.
The data confirm Sotomayor’s accusation. According to an article by Stephen 2019 of the University of Texas law professor, Stephen Vladeck, the Trump administration is unusually likely to request a stay in the Supreme Court, and the Roberts Court is unusually likely to grant them.
“In less than three years, [Trump’s] The solicitor filed at least twenty-one applications for residence in the Supreme Court (including ten during the October 2018 term alone), “wrote Vladeck. In comparison, “during the sixteen years of the George W. Bush and Obama administrations, the Solicitor General presented a total of eight such questions – on average one each other Term.”
Past administrations typically avoid making such requests because a stay at the Supreme Court is considered an extraordinary relief – the type that is rarely granted and that the parties should be extremely reluctant to ask for. Still, the Trump administration has a very high payout rate, achieving a total or partial victory in about two thirds of cases in which it tries to temporarily block an opinion from the lower court.
As Sotomayor wrote last fall, “granting a stay pending appeal should be an” extraordinary “act. Unfortunately, it appears that the government has treated this exceptional mechanism as a new normal.” And the court appears to have rewarded this behavior.
on Fridays Sierra Club the order is significant, in other words, not only because it will allow the construction of the wall to continue. It is also significant because it suggests that the Supreme Court will ease its normal procedural rules for the current president.