It’s a sad, scary day. Amy Coney Barrett is officially a justice on the Supreme Court. On Monday, the Senate voted 52-48 to confirm her. Justice Clarence Thomas swore her in. Her appointment signals a shift in the U.S. judicial system, which is leaning more and more to the right. Ideology isn’t always a dealbreaker in the Supreme Court, but it certainly appears to be these days when it comes to the border wall.
The Supreme Court decided on Oct. 19 that it would take up Trump v. Sierra Club, a lawsuit launched last year arguing that President Donald Trump’s administration unlawfully diverted $2.5 billion in military funds toward constructing the U.S.-Mexico border wall. Now, legal battles can quickly get complex, especially when there’s a whole bunch of separate lawsuits involved (as is the case with the border wall). That being said, I’m gonna try to break down—as simply as possible—the potential impact Barrett’s addition to the bench may mean for this project.
Welcome to The Frontline, where we’re shining the spotlight on the Supreme Court. I’m Yessenia Funes, climate editor at Atmos. As part of this week’s installment of stories on the border wall, we’re taking a look at this Sierra Club case, which has sat before the highest court before. If the past is any indication, things aren’t looking too great for border wall opponents.
First things first: The future of this case—and of the border wall at large—hinges strongly on the outcome of the U.S. election next week. Should Trump win, you bet he’s gonna keep pushing the wall through. However, if former Vice President Joe Biden wins, which many polls are predicting, then he’s likely to squash the litigation. He has committed to stop the wall’s construction though he hasn’t gone as far as to say he’d remove what the president has built.
If he enters office in January, Biden would be able to withdraw the case because he’d be the defendant at that point. You see, the Trump administration petitioned the Supreme Court to take on the case after plaintiffs were winning in the lower courts. Biden winning the election is really the plaintiffs’ best shot at winning the case.
Without knowing the detailed opinions of Barrett, who was unwilling to share very much in her congressional hearings, we can guess the Supreme Court is an unlikely place for plaintiffs to succeed. That’s because we’ve got a record to look at, Sarah Krakoff, a professor of law at the University of Colorado Law School who has been following this case, told me.
“It’s just easier to predict this case than many others,” she said. “The road is not gonna get smoother for the plaintiffs.”
In July 2019, the Supreme Court reversed a lower court decision and allowed the Trump administration to move forward with using diverted federal funds to begin building the wall while the lawsuit was pending. The Supreme Court was key in moving the case in favor of the Trump administration. This was well before any concern about Barrett. This was when Justice Ruth Bader Ginsburg was still on the court. Even then, the Supreme Court did not favor the plaintiffs.
Under our constitutional system, there’s no shared power over the purse, over taxpayer funds. That money belongs to Congress.
Again, in July of this year, the Sierra Club tried to secure a temporary injunction to stop construction. Justices ruled 5-4 in rejection of that request. Now the case is back in the Supreme Court. This time, justices will issue a final decision on the case. They’ll look at a specific statute that sits at the heart of the case: Section 8005 of the Department of Defense Appropriations Act. Here is what that text states:
…such authority to transfer may not be used unless for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress
“So the question is did that diversion, that transfer of $2.5 billion, violate the discretion allowed under this statute,” Krakoff says.
She doesn’t see a scenario where the Supreme Court rules that Secretary of Defense Mark Esper did violate the law in doing this. Not with how the court is shaping out to look. Neither does Michael Burger, the executive director of the Sabin Center for Climate Change Law at Columbia Law School.
“If the case does get heard: Judge Barrett, like her mentor Antonin Scalia, and like other members of the conservative bloc on the Court, is likely to adopt a narrow view of who can bring a challenge in court,” Burger told me in an email. “Five judges have already voted to allow the funding to go through and construction to proceed; it would be unsurprising if she joined them in ruling in favor of the U.S.”
In about a week, we’ll know where this case—and the future of U.S. borderlands—sits. This Supreme Court ruling has the potential to affect the separation of powers between the executive and legislative branches. It opens up a potential future where Congress saying no means very little to the president.
“That is a huge problem legally because, under our constitutional system, there’s no shared power over the purse, over taxpayer funds. That money belongs to Congress,” Dror Ladin, a senior staff attorney at the ACLU and lead attorney on this case, told me. “It’s very important to keep the power of the purse separate from the presidency.”
As a result of this transfer of dollars, military families lost funding for schools and daycare centers. That money didn’t come out of thin air. Now, it’s resulting in disastrous consequences for the wildlife and people who live along the border.