Another Try at Defunding the Wall

Press Releases

July 29, 2020

IRLI steps in to urge Supreme Court not to lift its stay

WASHINGTON—Yesterday, the Immigration Reform Law Institute (IRLI), on behalf of Congressman Andy Barr of Kentucky, filed an emergency friend-of-the-court brief in the U.S. Supreme Court urging the Court to deny a new bid by activist groups to defund the Trump administration’s border wall.

The groups, which include the Sierra Club, claim that the wall injures their aesthetic enjoyment of the border, and that the administration’s transfer of military funds to build the wall, following the President’s declaration of a national emergency at the border, violated appropriations statutes. They obtained a preliminary injunction in a California district court, but last year the Supreme Court stayed that injunction pending appeal, allowing the administration to keep building the wall until the case is finally resolved.

Since the Supreme Court issued its stay, the district court granted the activists a permanent injunction, which was upheld by a panel of the Ninth Circuit Court of Appeals. The activists now are asking the Supreme Court to lift its stay, on the ground that a permanent injunction is different from a preliminary injunction.

As IRLI points out in its brief, however, the arguments against the preliminary injunction work just as well against the permanent injunction. Injury to aesthetic enjoyment does not give the Sierra Club standing to sue under military appropriations statutes, the President’s declaration of a national emergency at the border was squarely within his discretion under the National Emergencies Act, and the appropriations statutes at issue allow the transfer of military funds to military construction projects, such as a wall. Thus, the activist groups are very unlikely to prevail when their case reaches the Supreme Court, and lifting the stay in the meantime would cause grave harm both to the Executive Branch as an institution and to the public interest.

“It would be truly absurd if a group like the Sierra Club were able to stop a military construction project based on aesthetic objections,” said Dale L. Wilcox, executive director and general counsel of IRLI. “That may make sense under environmental protection laws, but not under the military appropriations statutes they are suing under. It is particularly ironic that the Sierra Club is bringing this suit, because illegal aliens cause far more environmental destruction—including massive amounts of trash in our national parks—than any border wall could.

“This suit arose because anti-borders politicians lacked the votes to change the laws that give Trump authority to build the wall,” Wilcox continued. “We hope that this latest attempt by aligned activist groups to undo this political loss in court will fail, the stay will not be lifted, and the wall will keep getting built.”

The case is Trump v. Sierra Club, No. 19A60 (Supreme Court).

For additional information, contact: Brian Lonergan • 202-232-5590 • [email protected]

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