DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL.
SIERRA CLUB, ET AL.
APPLICATION FOR STAY
application for stay presented to JUSTICE KAGAN and by her
referred to the Court is granted. Among the reasons is that
the Government has made a sufficient showing at this stage
that the plaintiffs have no cause of action to obtain review
of the Acting Secretary's compliance with Section 8005.
The District Court's June 28, 2019 order granting a
permanent injunction is stayed pending disposition of the
Government's appeal in the United States Court of Appeals
for the Ninth Circuit and disposition of the Government's
petition for a writ of certiorari, if such writ is timely
sought. Should the petition for a writ of certiorari be
denied, this stay shall terminate automatically. In the event
the petition for a writ of certiorari is granted, the stay
shall terminate when the Court enters its judgment.
Justice Ginsburg, Justice Sotomayor, and Justice KAGAN would
deny the application.
JUSTICE BREYER, concurring in part and dissenting in part
from grant of stay.
warrant this stay, the Government must show not just (1) a
reasonable probability that the Court will grant certiorari
and (2) a fair prospect that the Court will reverse, but also
(3) "'a likelihood that irreparable harm will result
from the denial of a stay.'" Maryland v.
King, 567 U.S. 1301, 1302 (2012) (ROBERTS, C. J., in
chambers). This case raises novel and important questions
about the ability of private parties to enforce Congress'
appropriations power. I would express no other view now on
the merits of those questions.
granting a stay, however, we must still assess the competing
claims of harm and balance the equities. Barnes v.
E-Systems, Inc. Group Hospital Medical & Surgical Ins.
Plan, 501 U.S. 1301, 1305 (1991) (Scalia, J., in
chambers). This Court may, and sometimes does, "tailor a
stay so that it operates with respect to only 'some
portion of the proceeding.'" Trump v.
International Refugee Assistance Project, 582 U.S. ___,
___ (2017) (per curiam) (slip op., at 10) (quoting
Nken v. Holder, 556 U.S. 418, 428 (2009)). In my
view, this is an appropriate case to do so.
grant the stay, the Government may begin construction of a
border barrier that would cause irreparable harm to the
environment and to respondents, according to both respondents
and the District Court. The Government's only response to
this claim of irreparable harm is that, if respondents
ultimately prevail, the border barrier may be taken down
(with what funding, the Government does not say). But this is
little comfort because it is not just the barrier, but the
construction itself (and presumably its later destruction)
that contributes to respondents' injury.
instead deny the stay, however, it is the Government that may
be irreparably harmed. The Government has represented that,
if it is unable to finalize the contracts by September 30,
then the funds at issue will be returned to the Treasury and
the injunction will have operated, in effect, as a final
judgment. Respondents suggest a court could still award the
Government relief after an appropriation lapses, though that
proposition has yet to be endorsed by this Court.
there is a straightforward way to avoid harm to both the
Government and respondents while allowing the litigation to
proceed. Allowing the Government to finalize the contracts at
issue, but not to begin construction, would alleviate the
most pressing harm claimed by the Government without risking
irreparable harm to respondents. Respondents do not suggest
that they will be harmed by finalization of the contracts
alone, and there is reason to believe they would not be. See,
e.g., 36 Opinion of Office of Legal Counsel 11
(2012) (noting that, because of the Anti-Deficiency Act,
"the government [is] legally incapable of incurring a
contractual obligation to pay more money than Congress had
appropriated"), online at https://www.justice.gov/file/
20596/download (as last visited July 26, 2019); see also
Leiter v. United States, 271 U.S. 204, 206-207
(1926); Sutton v. United States, 256 U.S. 575,
580-581 (1921); Hooe v. United States, 218 U.S. 322,
332-334 (1910); Bradley v. United States, 98 U.S.
104, 116-117 (1878).
therefore find no justification for granting the stay in
full, as the majority does. I would grant the
Government's application to stay the injunction only to
the extent that the injunction prevents the Government from
finalizing the contracts or taking other preparatory
administrative action, but leave it in place insofar as it
precludes the Government from ...