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El Paso County and BNHR Seek Supreme Court Review in Border Wall Case

Review Would Bring Nationwide Injunction Out of Judicial “Shadow Docket”

EL PASO, TX—Today, El Paso County, Texas, and the Border Network for Human Rights filed a “cert before judgment” petition requesting that the Supreme Court review their case challenging President Trump’s misuse of Department of Defense funds to circumvent Congress for his U.S.-Mexico border wall. The petition can be found here.

Previously a federal district court in the Western District of Texas deemed the Trump Administration’s emergency proclamation and spending of military construction funds under the National Emergencies Act unlawful and issued a nationwide injunction to stop construction of the wall. However, a divided 5th Circuit Court of Appeals panel issued a stay of the injunction, citing the Supreme Court’s decision to halt a similar order in a related case brought by the ACLU.

Kristy Parker, Counsel for Protect Democracy, said: “The Supreme Court cannot deny the growing legal consensus. Every lower court to rule on President Trump’s flagrant usurpation of Congress to build his border wall has found it to be illegal. It’s time for the Supreme Court to check this tyrannical power grab and show Trump — and the country — that we have three co-equal branches of government, instead of one king-like executive.”

The Administration has been permitted to continue its violation of the Constitution because the case has fallen into the Supreme Court’s “shadow docket,” cases in which the Court has issued a summary order staying a lower court ruling on the merits. Legal and policy experts increasingly alarmed at the frequency of such rulingseffectively rendering the lower courts useless for enforcing the separation of powerssay fundamental reforms of the National Emergencies Act are needed to prevent future executive abuses of power.

Stuart Gerson, former Acting U.S. Attorney General and co-counsel for the plaintiffs, said: “The Supreme Court should take this case which could allow it to reaffirm our system of constitutional checks and balances that the Trump administration is flouting by arrogating congressional appropriations power. The Court should not allow this and related cases to languish because it controls the only definitive and certain way to stop the abuse of power of the Executive Branch and the restoration of Congress’s ability to restore and exercise the Article I powers that the framers of the constitution intended it to have. Now more than ever Congress must enact meaningful reforms to the National Emergencies Act and roll back decades of presidential encroachment into areas assigned to the legislature, irrespective of who occupies the White House.”

David Bookbinder, Chief Counsel for the Niskanen Center and co-counsel for the plaintiffs, said: “The Constitution is under attack by Donald Trump, and we’re relying on the Supreme Court to protect the Constitution and the country from the greatest internal threat we have faced since the Civil War.”

Laurence H. Tribe, Carl M. Loeb University Professor and Professor of Constitutional Law Emeritus at Harvard Law School and co-counsel for the plaintiffs, said: “The Supreme Court has repeatedly accepted the administration’s requests to leapfrog the Courts of Appeals, including staying the lower courts’ orders on the legality of Trump’s diversion of funds appropriated for other purposes to fund his border wall project.  It should certainly grant El Paso County’s request to have the issues in its case heard now in order to avoid piecemeal adjudication and to understand the dispute in all its dimensions.”

Fernando Garcia, Executive Director of Border Network for Human Rights, said: “If the Supreme Court hears this case, it should hear about all of the people who have been harmed by Trump’s abuses of power to build his unlawful border wall. Trump’s actions have damaged our laws, our constitution, and most importantly, the people who live in our border communities.”