U.S. justices free up $2.5B for border wall
Construction now a go; Trump claims ‘win’
WASHINGTON — The Supreme Court on Friday allowed President Donald Trump’s administration to move forward with plans to build a wall along parts of the Mexican border while litigation over paying for it proceeds.
A trial judge had prohibited the administration from transferring $2.5 billion from the Pentagon’s budget to pay for the replacement of existing sections of barrier in Arizona, California and New Mexico with more robust fencing. An appeals court had refused to enter a stay while it considered the administration’s appeal.
The Supreme Court’s five conservative justices gave the administration the green light, allowing construction to proceed while the litigation continues.
The court’s four more liberal justices dissented. One of them, Justice Stephen Breyer, wrote that he would have allowed preparatory work but not construction.
Trump tweeted after the announcement: “Wow! Big VICTORY on the Wall. The United States Supreme Court overturns lower court injunc
allows Southern Border Wall to proceed. Big WIN for Border Security and the Rule of Law!”
American Civil Liberties Union lawyer Dror Ladin said after the court’s announcement that the fight “is not over.”
House Speaker Nancy Pelosi issued a statement Friday night accusing Trump of trying to “undermine our military readiness and steal from our men and women in uniform to waste billions on a wasteful, ineffective wall that Congress on a bipartisan basis has repeatedly refused to fund.” She said the Supreme Court’s decision “undermines the Constitution and the law.”
Senate Democratic Leader Charles Schumer of New York called the decision “deeply regrettable and nonsensical.”
The case the Supreme Court ruled on began after the 35-day partial government shutdown that started in December. Trump ended the shutdown in February after Congress gave him about $1.4 billion in border wall funding. But the amount was far less than the $5.7 billion he was seeking, and Trump then declared a national emergency to take cash from other government accounts to use to construct sections of wall.
The money Trump identified includes $3.6 billion from military construction funds, $2.5 billion in Defense Department money and $600 million from the Treasury Department’s asset forfeiture fund.
The case before the Supreme Court involved just the $2.5 billion in Defense Department funds, which the administration says will be used to construct more than 100 miles of fencing. One project would replace 46 miles of barrier in New Mexico for $789 million. Another would replace 63 miles in Arizona for $646 million. The other two projects in California and Arizona are smaller.
The other funds were not at issue in the case. The Treasury Department funds have so far survived legal challenges, and the Customs and Border Protection agency has earmarked the money for work in Texas’ Rio Grande Valley but has not yet awarded contracts. Transfer of the $3.6 billion in military construction funds is awaiting approval from the defense secretary.
Soon after Trump declared a national emergency, two advocacy groups represented by the ACLU — the Sierra Club and Southern Border Communities Coalition — sued to stop Trump’s plan to use money meant for military programs to build barriers along the border.
Judge Haywood Gilliam of U.S. District Court in Oakland, Calif., blocked the effort in a pair of decisions that said the statute the administration had relied on to justify the transfer did not authorize it.
“The case is not about whether the challenged border barrier construction plan is wise or unwise. It is not about whether the plan is the right or wrong policy response to existing conditions at the southern border of the United States,” Gilliam wrote. “Instead, this case presents strict legal questions regarding whether the proposed plan for funding border barrier construction exceeds the executive branch’s lawful authority.”
A divided three-judge panel of the 9th U.S. Circuit Court of Appeals, in San Francisco, refused to stay Gilliam’s injunction while the court considered the government’s appeal.
The public interest, the majority said, “is best served by respecting the Constitution’s assignment of the power of the purse to Congress, and by deferring to Congress’ understanding of the public interest as reflected in its repeated denial of more funding for border barrier construction.”
In urging the Supreme Court to intercede, Noel Francisco, the solicitor general, wrote that the plaintiffs’ “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.”
Francisco argued that the lower courts had misread two provisions of a federal law in concluding that the transfer was not authorized. The law allows reallocation of money to address “unforeseen military requirements” where the expenditures had not been “denied by Congress.” Francisco wrote that the drug enforcement measures were unforeseen when the Defense Department made its budget request and that Congress had never addressed the particular narcotics measures.
In response, the ACLU said the central issue in the case was straightforward. The administration, the group wrote, “lacks authority to spend taxpayer funds on a wall that Congress considered and denied.”
GUATEMALA DEAL
In addition to the border wall, the Trump administration has been working with other countries to try to stanch the flow of migrants crossing the southern border.
On Friday, the Trump administration signed an agreement with Guatemala that will restrict asylum applications to the U.S. from Central America.
The agreement regarding the so-called safe third country would require migrants, including Salvadorans and Hondurans, who cross into Guatemala on their way to the U.S. to apply for protections in Guatemala instead of at the U.S. border.
“This is a very big day,” Trump said. “We have long been working with Guatemala and now we can do it the right way.”
The two countries had been negotiating such an agreement for months, and Trump threatened Wednesday to place tariffs or other consequences on Guatemala if it didn’t reach a deal.
“We’ll either do tariffs or we’ll do something. We’re looking at something very severe with respect to Guatemala,” Trump had said.
On Friday, Trump praised the Guatemalan government, saying now it has “a friend in the United States, instead of an enemy in the United States.”
Trump added Friday that the agreement would protect “the rights of those with legitimate claims,” end “abuse” of the asylum system and curtail the crisis on the U.S. southern border.
He said that as part of the agreement, the U.S. would increase access to the H-2A visa program for temporary agricultural workers from Guatemala.
It’s not clear how the agreement will take effect. Guatemala’s Constitutional Court has granted three injunctions preventing its government from entering into a deal without approval of the country’s congress.
Guatemalan President Jimmy Morales said on social media that the agreement allows the country to avoid “drastic sanctions … many of them designed to strongly punish our economy, such as taxes on remittances that our brothers send daily, as well as the imposition of tariffs on our export goods and migratory restrictions.”
Human-rights prosecutor Jordan Rodas said his team was studying the legality of the agreement and whether Interior Minister Enrique Degenhart had the authority to sign the compact.
Guatemala’s government put out a six-paragraph, Spantion,
ish-language statement Friday on Twitter. It does not call the agreement “safe third country” but “Cooperation Agreement for the Assessment of Protection Requests.”
The Guatemalan government said that in coming days its Labor Ministry “will start issuing work visas in the agriculture industry, which will allow Guatemalans to travel legally to the United States, to avoid being victims of criminal organizations, to work temporarily and then return to Guatemala, which will strengthen family unity.”
The same conditions driving Salvadorans and Hondurans to flee their country — gang violence, poverty, joblessness, a prolonged drought that has severely hit crop yields — are present in Guatemala.
Advocacy groups condemned the move Friday, with Amnesty International saying “any attempts to force families and individuals fleeing their home countries to seek safety in Guatemala are outrageous.”
Homeland Security officials said they expected the agreement to be ratified in Guatemala and would begin implementing it in August. Acting Secretary Kevin McAleenan said it was part of a long-standing effort with Guatemala to address migration and combat smuggling. He cautioned against calling the country unsafe for refugees.
“It’s risky to label an entire country as unsafe. We often paint Central America with a very broad brush,” he said. “There are obviously places in Guatemala and in the U.S. that are dangerous, but that doesn’t mean it doesn’t have a full and fair process. That’s what the statute is focused on. It doesn’t mean safety from all risks.”