The Supreme Court declined by a 5-4 vote Friday to halt the Trump administration’s construction of portions of the border wall with Mexico following a recent lower court ruling that the administration improperly diverted money to the project.
The court’s four liberal justices dissented, saying they would have prohibited construction while a court challenge continues, after a federal appeals court ruled in June that the administration had illegally sidestepped Congress in transferring the Defense Department funds.
“The Court’s decision to let construction continue nevertheless I fear, may operate, in effect, as a final judgment,” Justice Stephen Breyer wrote in a brief dissent for the four liberals.
Friday’s order means the court is not likely even to consider the substance of the issue until after the November election, while work on the wall continues.
Last summer, at an earlier stage in the case, the justices also split 5-4 along ideological lines to allow the administration to begin construction using $2.5 billion in Defense Department funds.
That allowed President Donald Trump to make progress on a major 2016 campaign promise heading into his race for a second term. The administration wanted to use the money to replace a total of 129 miles of rundown or outdated fencing in New Mexico, Arizona and California. As of mid-July, 92 miles have been completed, according to U.S. Customs and Border Protection.
Following the latest appeals court ruling, the wall’s challengers returned to the high court to ask that construction be halted.
The Trump administration opposed the request and said it would file paperwork in August asking the Supreme Court to hear arguments in the case.
The case has its origins in the 35-day partial government shutdown that started in December of 2018. Trump ended the shutdown after Congress gave him approximately $1.4 billion in border wall funding, but that was far less than the $5.7 billion he was seeking. Trump then declared a national emergency to take cash from other government accounts to use to construct sections of wall.
At the time, the money Trump identified included $2.5 billion in Defense Department money, $3.6 billion from military construction funds 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. The American Civil Liberties Union, which sued the Trump administration on behalf of Sierra Club and Southern Border Communities Coalition, has said it will seek to tear down sections of the wall that were built with the money.
“Every lower court to consider the question has ruled President Trump’s border wall illegal, and the Supreme Court’s temporary order does not decide the case. We’ll be back before the Supreme Court soon to put a stop to Trump’s xenophobic border wall once and for all,” Dror Ladin, staff attorney with the ACLU’s National Security Project, said in a statement following the court’s order Friday.
The Supreme Court is on break for the summer but does act on certain pressing items. It will begin hearing cases again in October.