EL PASO, Texas (Border Report) — El Paso County is taking its lawsuit against President Donald Trump to the Supreme Court.
A day after presenting oral arguments before the Fifth Circuit Court of Appeals, El Paso County and co-plaintiff Border Network for Human Rights filed a “cert before judgment” petition requesting that the Supreme Court review their case.
The county and BNHR accused President Trump of sidestepping Congress to use funds from the Department of Defense for border wall construction along the U.S.-Mexico border.
On Tuesday, lawyers for the government argued before the Fifth Circuit that El Paso County had no standing to sue because the proposed wall construction did not include projects in El Paso county.
Lawyers for El Paso County countered, saying that a suspended $20 million project at Fort Bliss — which is located within El Paso County — would have benefitted El Paso County and its tax revenue base.
In December, U.S. District Judge David Briones issued a nationwide injunction blocking the administration from setting aside the military funds to pay for the construction of a border barrier. However, the Fifth Circuit in January granted the Trump administration a stay on the injunction while it appealed.
Lawyers representing El Paso County said a Supreme Court review would bring the case out of the “shadow docket” and instead reaffirm the United States’ system of constitutional checks and balances.
“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,” Laurence H. Tribe, co-counsel for the plaintiffs, said in a news release issued by Protect Democracy. “(The Supreme Court) 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.”
Said Fernando Garcia, executive director of BNHR: “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.”
The U.S. Supreme Court recently weighed in on a similar case involving the Sierra Club, which sued the Trump administration over the transfer of defense funds for the construction of a border wall in California, Arizona, and New Mexico.
The Ninth Circuit Court of Appeals sided with the environmental group, but the Supreme Court days later declined by a 5-4 vote to halt the Trump administration’s construction of portions of the border wall.
Stuart Gerson, a member of the law firm representing El Paso County and the BNHR told Border Report that the reason they filed the Supreme Court petition was to make sure they’re on the same track as the Sierra Club.
“The government has petitioned for review of the 9th Circuit’s ruling,” Gerson said. “If the Court accepts that petition, we are trying to assure that our case will be there, too, irrespective of what the 5th Circuit might do, though the 5th Circuit very well might rule before the Supreme Court takes any action.