Trump Seeks to Bring Another Border Wall Fight to Supreme Court

Nov. 18, 2020, 4:53 PM

The Trump administration wants the U.S. Supreme Court to review a ruling that the U.S.-Mexico border wall construction projects aren’t sufficiently related to military construction projects to divert funding from those sources, according to a petition for certiorari.

Environmental groups, with support from multiple states, sued after federal officials announced they were diverting $3.6 billion from military construction projects to fund 11 border wall projects in California, Arizona, New Mexico, and Texas. The projects were allegedly authorized by the Secretary of Defense.

The government argued in the Tuesday petition that the projects qualified as “other activity” under military jurisdiction, but the U.S. Court of Appeals for the Ninth Circuit ruled in October that interpretation was too broad and would conflict with the U.S. Constitution’s separation of powers.

Two of the projects will be built on an Air Force and Marine Corps bombing range, and the remaining projects will be built on land under the Secretary of the Army’s jurisdiction, the Department of Justice said in its petition filed Tuesday. The panel interpreted the phrase “other activity” as a base, camp, post, station, or something similar. But Judge Daniel P. Collins correctly wrote in his dissenting opinion that an “activity” refers to “places under military jurisdiction,” DOJ says.

The panel also ruled the projects were intended to serve the Department of Homeland Security, which is a civilian agency, and not the military. However, the court doesn’t get to “substitute its own view of when the armed forces are needed in a national emergency for the view of the president,” the government says, citing 10 U.S.C. §2808.

The Supreme Court has already agreed to hear a similar appeal over border wall funding, making a GVR—an order granting review, vacating the decision below, and remanding for further action—likely in this case once the other is decided.

The Sierra Club represented itself and the Southern Border Communities Coalition, joined by the Seton Hall University School of Law and the American Civil Liberties Union Foundation, in the Ninth Circuit.

The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The case is Sierra Club v. Trump, U.S., No. 20-685, 11/17/20.

To contact the reporter on this story: Maya Earls in Washington at mearls@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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