The Ninth Circuit, having refused to grant a stay, will hear the administration’s appeal on the merits in the fall; final briefs are due in October. That’s not fast enough, the administration told the Supreme Court. With the end of the fiscal year approaching on Sept. 30, it explained, appropriations authority will expire along with the chance to go ahead with the projects this year even if the administration eventually wins on appeal. Perhaps sensing a weakness in the statutory argument, Solicitor General Noel Francisco also argued strenuously that the Sierra Club lacked standing to bring the lawsuit in the first place.

It was on this last argument that the Supreme Court’s majority hung its decision to grant the stay. The court’s one-paragraph unsigned order said only that “among the reasons” for lifting the injunction “is that the government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the acting secretary’s compliance with Section 8005.”

There is much that’s highly questionable about the court’s behavior in this case. When a court confronts the question of whether to grant a stay, the issue comes down to what courts call a “balance of the equities.” Which side will suffer the most from a suspension of the judgment, the winning side or the side that failed to make its case and wants another chance? Which side is most likely to suffer irreparable injury? In this case, the Sierra Club argued that if construction goes ahead, the damage will be done; the government will have won on the ground even if it ultimately loses in court. As for the administration’s claim of imminent harm, it can always try again in the next fiscal year.

The likelihood that the party requesting a stay will ultimately prevail on the merits is another factor that courts take into account. That the administration’s case on the merits is far from a winning one is, of course, no guarantee that it can’t win at the Supreme Court, but the justices will have to do some heavy lifting to make that happen. The House of Representatives filed a strong friend-of-the-court brief, reminding the justices that the “power of the purse is an essential element of the checks and balances built into our Constitution — even the monarchs of England learned long ago that they could not spend funds over the opposition of Parliament.” The House brief continued: “The administration’s attempt to insulate its conduct from judicial review cannot be reconciled with ‘the strong presumption that Congress intends judicial review of administrative action.’” (The quotation was from a 1986 8-to-0 Supreme Court opinion written by Justice John Paul Stevens.)

What’s most troubling about the court’s action is that even if five justices found the administration’s argument attractive or even compelling, the court’s unconditional surrender (even issuing the stay on the precise date the administration requested, July 26, and not a day later) was simply unnecessary. In the only signed opinion the court issued, Justice Stephen Breyer explained how the court could have permitted the government to enter into construction contracts in time for the fiscal year deadline while keeping the injunction in place to block actual construction.

As he explained his reasoning: “If we grant the stay, the government may begin construction of a border barrier that would cause irreparable harm to the environment and to respondents, according to both respondents and the District Court. The government’s only response to this claim of irreparable harm is that, if respondents ultimately prevail, the border barrier may be taken down (with what funding, the government does not say). But this is little comfort because it is not just the barrier, but the construction itself (and presumably its later destruction) that contributes to respondents’ injury.”

He continued: “If we instead deny the stay, however, it is the government that may be irreparably harmed. The government has represented that, if it is unable to finalize the contracts by September 30, then the funds at issue will be returned to the Treasury and the injunction will have operated, in effect, as a final judgment.”

Justice Breyer’s proposal was, he said, “a straightforward way to avoid harm to both the government and respondents while allowing the litigation to proceed.” I’m assuming that his three liberal colleagues, Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, would have agreed to this common-sense compromise if the offer could have peeled off a necessary fifth vote from the other side. That no fifth vote was forthcoming, that the majority rushed to give the administration everything it asked for, tells us all we need to know about the Supreme Court at this moment — and sadly, frighteningly, tells President Trump the same thing.

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