Supreme Court

Supreme Court Refuses to Allow District Court to Halt Border Wall Construction

Yet again, the Chief Justice shows his distaste for preliminary injunctions.

|The Volokh Conspiracy |

Yesterday afternoon, the Supreme Court denied a request by the Sierra Club to lift a stay on a district court injunction against wall construction along parts of the U.S. border with Mexico. Justice Breyer, joined by the other liberal justices, dissented from the order.

This decision should not be much of a surprise. As I noted in a prior post, the Chief Justice believes that lower federal courts are too quick to offer injunctive relief against governmental actions, and votes quite consistently to void such relief.  Thus he has provided the fifth vote to stay injunctions opposed by both the Left and the Right.

The Chief Justice's reluctance to endorse preliminary injunctions is one facet of his conservative minimalist judicial philosophy. The Chief sees the courts as umpires, and believes the umpires should generally let play continue on the field. This means, among other things, that he thinks judicial relief should be more constrained. This leads him not only to raise the bar for preliminary injunctive relief, but also for litigants getting into court in the first place. So the Chief Justice is a hawk on standing and extremely skeptical of implied causes of action and entrepreneurial efforts by plaintiffs' attorneys to develop new theories for litigation.

On the subject of the border wall, it is worth noting that the Court passed on hearing a nondelegation challenge to the Department of Homeland Security's authority to waive various legal requirements to facilitate wall construction. Despite the Court's apparent interest in the nondelegation doctrine—and a request that the Solicitor General respond to the petition for certiorari—there were not four justices willing to vote for cert.

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  1. The interesting contrast is the relative ease with which the Interstate Highway system was built — not along the desolate desert wastelands along the border but through the middle of communities.

    1. The interstate highway system began with an authorization of $25 billion for the construction of 41,000 miles. This was from the Federal Aid Highway Act (Public Law 84-627) enacted by Congress.

      It wasn’t began with monies stolen from other congressional appropriations – all because the legislative branch refused to fund an executive branch exercise in political branding.

      Which makes for an “interesting contrast” with the current situation…

  2. “You may continue to eat that cookie while this Court waits for its chance to determine whether it actually belongs to the other kid.”

    1. Let them have their last gasp of political and cultural relevance.

      Conservatives have been stomped by their betters before. They will be defeated by their betters again.

      That is the American way.

  3. The new wall works very well:

    https://www.washingtonexaminer.com/washington-secrets/new-border-wall-blocks-90-of-illegal-crossings-up-from-just-10

    All the people who told you that walls don’t work were wrong. Which was obvious to everyone except the anti-wall zealots — of course walls work.

    The people who say walls don’t work are the progressive version of the Flat Earth Society.

    1. Lefties aren’t known for logical thought.

    2. People who say walls don’t work generally take care to ensconce themselves behind some combination of deadbolt locks, gated communities, and doorman buildings.

      Most curiously, they do so despite the fact that every single one of those defenses *can* be breached given enough resources and determination.

      1. Walls work when (and only when) they are a closed loop. When you can just go around the end of the wall it’s not that much of an obstacle.

        1. When you can just go around the end of the wall it’s not that much of an obstacle.

          Depends how far around you have to go and how difficult/hazardous it is to do so and get back to somewhere you actually want to be, amirite?

          Which, of course, is my point. Most real-world deterrents are somewhere on a continuum. When people say “border walls don’t work,” they really mean “border walls don’t completely eliminate illegal crossings.” That’s a red herring.

          1. What they really mean is I’m on Team Blue and we on Team Blue speak words without regard to truth or fact or understanding. The more false the words, the more it shows their dedication to the team.

            1. I’m on team Purple. Teams Red and Blue can both go shove it where the sun doesn’t shine.

              1. No one asked about you, random internet guy.

                1. Whereas we are all on the edge of our seats wondering what your opinion will be.

          2. “Depends how far around you have to go and how difficult/hazardous it is to do so and get back to somewhere you actually want to be, amirite?”

            No, you aren’t right.

          3. Look at the multiple groups that walked from Central America, all the way through Mexico to the southern US boarder. If you think a few hundred extra miles to go around the end of a wall are going to deter them, you are delusional.

            I would love to see our southern boarder secured. A wall isn’t going to do it.

            1. Pretending that building a wall means there aren’t any human beings left patrolling the border at any point seems a bit disingenuous. Maybe read the article Ben linked.

            2. You’re explaining exactly why we need a wall across the entire border.

      2. People who say walls don’t work generally take care to ensconce themselves behind some combination of deadbolt locks, gated communities, and doorman buildings.

        [Citation needed.]

        1. Oh, good point. I forgot about anti-wall blowhards who commute for an hour and change one way from tiny bedroom communities where they don’t have to live with the consequences of their worldviews.

          If you know anyone like that, maybe you can ask if they still lock their doors.

    3. They also say lots of other things about immigration — things which people believe. When people peddle obvious nonsense about a topic, why keep believing them when they say other related things?

  4. Let the conservative bigots build it. Better Americans will tear it down soon enough.

    Clingers must like the taste of the soles of the shoes of America’s mainstream. We keep walking on their tongues; they keep coming back for more.

    1. Conservatives build, and liberals destroy — that has been the regular order for the last several centuries, hasn’t it?

  5. Ah, the Libertarian dream of America as an open-borders welfare state for the western hemisphere will have to wait a bit longer. Sorry, Ilya!

  6. Under our constitution, there should be no more money used to build the wall then Congress authorized. It is disturbing to me that such a basic constitutional principle is lost on SCOTUS.

    1. Congress should repeal or amend the National Emergency Act. But until they do, the spending IS authorized by Congress.

  7. They should try and build it weather-proof this time. Walls that fall down are the nationalist symbol they envision.

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