The Court of Appeals for the Fifth Circuit issued a short order this week granting the Trump administration's request for a stay pending appeal of an injunction issued by Senior Judge David Briones of the U.S. District Court for the Western District of Texas. That injunction had blocked the Department of Defense from using $3.6 billion under 10 U.S.C. § 2808 for border construction. The circuit court's brief order relied on the Supreme Court's recent stay of a similar injunction in Trump v. Sierra Club, as well as (among other, unspecified reasons) the "substantial likelihood" that the plaintiffs/appellees in that case (El Paso County, Texas, and Border Network for Human Rights (BNHR)) lack standing.
I have previously examined in-depth Judge Briones' October 11, 2019, memorandum opinion, and in particular his conclusion that El Paso County and BNHR did, in fact, have standing to sue. In short, I did not buy it, and the Fifth Circuit apparently feels the same way.
In its order, as stated above, the circuit court also relied in part on the Supreme Court's stay of a similar injunction from the Ninth Circuit, in a similarly brief opinion in Sierra Club. As I noted in an October 2019 post on that decision:
[H]ere's the short and pithy summary: The private organizations who brought the case likely had no ability to do so, and the acting secretary of defense did not violate the law when he authorized the transfer funding for that wall. This is (educated) conjecture and somewhat over-simplistic, but is still probably right. [Emphasis added.]
That statement is consistent with the Fifth Circuit's findings as they relate to standing.
Interestingly, the Fifth Circuit also denied the government's motion to expedite the appeal, and for an oral argument to be scheduled for no later than March 2020. Those were likely alternative motions that the government had filed on the off chance that the circuit court did not stay the district court's injunction on standing and other grounds. In denying them, the Fifth Circuit has signaled that it is in no hurry to rule on the merits of the district court's order — likely awaiting a decision from the Ninth Circuit in Sierra Club and an inevitable appeal (by whichever party loses) to the Supreme Court.
The funding in this case is time-sensitive, and by the time that a final decision is issued on these issues, the border construction at issue should be completed. That is why the stays issued by the Supreme Court and the Fifth Circuit will, logically, resolve the issues in those cases. I seriously doubt that any of the courts involved (Ninth Circuit, Fifth Circuit, or Supreme Court) will order the destruction of those barriers once they are completed.
Given the "reputational injury" asserted by El Paso County, however, that is not a sure thing. But, as my prior analysis indicates, this is not a strong claim, given the fact that El Paso County has had fencing for years, and I seriously doubt that it influences how anyone views that locality, one way or the other.