Construction of a portion of the border wall between Mexico and New Mexico in April 2018. | Herika Martinez/AFP/Getty Images) legal Justice Dept. asks Supreme Court to lift border wall ruling

The Justice Department is asking the Supreme Court to step in to lift court orders blocking President Donald Trump from proceeding with his plan to spend billions of dollars on border wall construction despite Congress’ efforts to limit that spending.

Administration lawyers filed a stay application Friday afternoon seeking to lift an Oakland-based federal judge’s order blocking border wall projects in California, Arizona and New Mexico.


Solicitor General Noel Francisco told the high court that the injunction is impairing federal officials’ ability to cut drug trafficking across the border with Mexico.

“The harm to the government and the public from enjoining DOD’s use of the transferred funds during litigation is significant. The injunction frustrates the government’s ability to stop the flow of drugs across the border in known drug-smuggling corridors,” Francisco wrote.

Justice Elena Kagan gave the environmental and border groups that obtained the injunction until next Friday to respond to the request.

The current injunction puts on hold about $2.5 billion Trump’s plan sought to spend through a provision allowing available Defense Department construction funds to be spent on unforeseen needs.

However, the language Congress passed adding that flexibility says that authority can’t be used for budget items previously denied by lawmakers. Congress appropriated only $1.375 billion for border wall work in the current budget, and nothing for the specific projects covered by the injunction, but Trump aides devised a plan to spend more than $8 billion on the broad effort.

Trump’s move in May, which included efforts to open up funding by declaring a state of emergency, immediately drew a series of lawsuits from environmentalists, border residents, states and the House of Representatives. The suits argue Trump is acting illegally by spending funds without the approval of Congress, which must approve all appropriations under the Constitution.

Last week, a federal appeals court panel voted, 2-1, to deny the Justice Department’s stay request.

“The Constitution assigns to Congress the power of the purse. Under the Appropriations Clause, it is Congress that is to make decisions regarding how to spend taxpayer dollars,” 9th Circuit Judges Richard Clifton and Michelle Friedland wrote. “Congress did not appropriate money to build the border barriers Defendants seek to build here. Congress presumably decided such construction at this time was not in the public interest. It is not for us to reach a different conclusion.”

The appeals judges were unsparing about some of the Trump administration’s arguments. Clifton and Friedland deemed “not credible” the Justice Department’s contention that Congress had not denied the administration the funds it was seeking to spend.

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The groups that obtained the injunction, the Sierra Club and the Southern Border Communities Coalition, said they’ll urge the justices not to lift the order.

“The courts have twice ruled against Trump’s requests to stay this important court order stopping construction of his ruinous wall. Now he is asking the Supreme Court to step in and save his wall, but we will continue to vehemently fight these tactics,” Sierra Club attorney Gloria Smith said.

The Justice Department filing with the high court asks the justices to rule on the application by July 26 to allow the funding process to be completed by September 30. Previous filings from the administration said that process needed to begin by early July to be carried out while the funds are still available.

However, administration lawyers also told the Supreme Court on Friday they’ve discovered a mechanism that might allow that process to be compressed, permitting officials to formally obligate funds for the border projects closer to the end of the fiscal year on Sept. 30.