(Bloomberg) -- A divided U.S. Supreme Court cleared President Donald Trump’s administration to start using disputed Pentagon funds to construct more than 100 miles of fencing along the Mexican border, letting him take his biggest step yet toward erecting his long-promised wall.
The justices Friday lifted a lower court freeze that was designed to block the $2.5 billion in spending while a lawsuit by the Sierra Club and another advocacy group went forward. The four liberal justices said they would have kept construction on hold.
The order marks the first time the Supreme Court has acted in the dispute over the national-emergency declaration Trump issued in February in a bid to free up federal money for the wall.
“Wow! Big VICTORY on the Wall,” Trump tweeted. “The United States Supreme Court overturns lower court injunction, allows Southern Border Wall to proceed. Big WIN for Border Security and the Rule of Law!”
The wall segments in Arizona, New Mexico and California would give Trump a tangible achievement to tout in his campaign for re-election. Until now, congressional and court resistance had thwarted significant progress toward a stronger barrier on the almost 2,000-mile (3,200-kilometer) frontier. During his first campaign, Trump said Mexico would pay for the wall.
The 30-foot steel bollard fencing would replace barriers that the Trump administration says are dilapidated and ineffective. Some of those existing barriers are designed only to prevent vehicles from crossing and don’t stop pedestrians.
The American Civil Liberties Union, which is representing the Sierra Club and the Southern Border Communities Coalition, vowed to fight on.
“This is not over,” Dror Ladin, the ACLU’s lead lawyer in the case, said in a statement. “We will be asking the federal appeals court to expedite the ongoing appeals proceeding to halt the irreversible and imminent damage from Trump’s border wall.”
But the court’s unsigned order suggested the administration was likely to win the fight. The order said the administration “has made a sufficient showing at this stage” that the groups don’t have the legal right to challenge the Pentagon’s spending decisions.
Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan dissented, giving no explanation. Justice Stephen Breyer issued a partial dissent, saying he would have blocked construction while letting the government finalize its contracts.
Harm to Environment
Breyer pointed to the trial judge’s conclusion that construction “would cause irreparable harm to the environment” and to the challengers.
A federal trial judge in Oakland, California, blocked the Defense Department from diverting $2.5 billion originally appropriated for other purposes. The Pentagon sought to transfer the money into its counter-narcotics fund, saying it would build barriers in stretches of the border used heavily by drug smugglers.
A San Francisco-based federal appeals court agreed that the spending should be halted while the litigation went forward.
Trump declared the emergency after Congress approved only $1.4 billion of the $5.7 billion he sought for the wall this fiscal year. The House and Senate both voted to cancel Trump’s plan but weren’t able to override his veto.
The $2.5 billion is the first chunk of almost $7 billion in Pentagon and Treasury Department funds that the emergency declaration was designed to tap.
Risk of Delay
U.S. Solicitor General Noel Francisco told the Supreme Court that the administration risked not being able to use the money at all if the order wasn’t lifted with enough time before the fiscal year ends Sept. 30.
“If the injunction remains in place, it may foreclose DOD’s ability to obligate the funds,” Francisco wrote. “If so, it may effectively operate as a final judgment.”
The solicitor general said the order “frustrates the government’s ability to stop the flow of drugs across the border in known drug smuggling corridors.”
The ACLU said allowing the spending now would damage the environment, “dramatically upend the status quo,” and let the administration “irretrievably commit taxpayer funds in contravention of Congress’s considered spending judgment.”
The groups said the administration was seeking to “construct a permanent wall this summer -- before Congress has a chance to consider and pass another budget.”
The case is Trump v. Sierra Club, 19A60.
(Updates with Trump reaction in fourth paragraph)
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