(CN) — The Trump administration will be allowed to continue construction on a border wall along the U.S.-Mexico border after the Supreme Court on Friday declined in a 5-4 vote to stop the federal government’s diversion of military funds to pay for the project.
Last month, Chief U.S. Circuit Judge Sidney Thomas, a Bill Clinton appointee, with the Ninth Circuit found the administration illegally circumvented Congress’ “power of the purse” by transferring $2.5 billion in Department of Defense funds to the border wall project.
More than $6 billion will be diverted from the U.S. military to pay for the border wall that stretches from sections of Arizona, New Mexico, Texas and California.
On Friday, in a dissenting opinion Supreme Court Justice Stephen Breyer wrote the four liberal justices would have stopped construction on the wall while a court challenge continues.
“Now, the Government has apparently finalized its contracts, avoiding the irreparable harm it claimed in first seeking a stay,” Breyer wrote. “The Court’s decision to let construction continue nevertheless, I fear, may “operat[e], in effect, as a final judgment.”’
Last July the Supreme Court in a 5-4 vote lifted a lower court’s injunction in a lawsuit filed by the Sierra Club and the Southern Border Communities Coalition who argued the declaration made by Trump of a national emergency at the southern border was illegitimate.
The conservative majority said the federal government provided enough evidence to show that the parties who brought the lawsuit did not have cause of action to obtain a review on the decision to transfer $2.5 billion from military accounts toward construction of the wall.
The Ninth Circuit’s rulings this summer found Trump violated the Appropriations Clause of the Constitution by illegally authorizing the transfer of Pentagon funds to cover border wall construction expenses in El Paso, Texas, and El Centro, California, along the southwest U.S.-Mexico border.
The provision allowing for the transfer of funds had been invoked to pay for hurricane and typhoon damage to military bases, “natural disasters that inflict damage that may not be anticipated or expected ahead of time,” Thomas wrote for the Ninth Circuit Court last month.
Drug smuggling across the U.S.-Mexico border “was not unanticipated or unexpected here,” Thomas wrote.
“Congress’s joint resolution terminating the president’s declaration of a national emergency only reinforces this point: there was no unanticipated crisis at the border. Nothing prevented Congress from funding solutions to this problem through the ordinary appropriations process — Congress simply chose not to fund this particular solution,” Thomas wrote.
President Donald Trump continually made a campaign promise in 2016 to build a border wall along the southern border and have Mexico pay for it.
American Civil Liberties Union attorney Dror Ladin said in a statement Friday, "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.”
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