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ACLJ and DOJ Both Submit Critical Filings at Supreme Court To Support Our National and Border Security

By 

Jordan Sekulow

|

September 8

We’ve warned you that the radical Left is trying to block the President’s ability to secure our nation’s borders. House Speaker Nancy Pelosi and her colleagues have been fighting the President’s efforts to secure our border for a long time, putting our national security at risk.

The ACLJ is taking direct action –  again. Today we filed a new amicus brief at the U.S. Supreme Court in support of the President’s constitutional and statutory authority to keep our nation safe.

We already filed critical amicus briefs in the two cases now before the Supreme Court. In both cases, the Left challenged the President’s authority to reprogram congressionally approved funding for border security – which he is statutorily allowed to do.

In one of those cases we filed in – Sierra Club v. Trump, (9th Cir.) – the environmental group called the Sierra Club, along with the ACLU, persuaded a lower court to overrule the President’s lawful authority to utilize funds to construct roads, fences, and lighting in two specific sections of America’s southern border with Mexico – the El Paso and Yuma Sectors.

The Trump Administration appealed to the Ninth Circuit, filing an emergency motion to stay that lower court’s astonishing ruling.  But as reported, the Ninth Circuit declined the President’s request for a temporary stay.

The clash came to the court for the first time last year, after a federal district judge in California agreed with the challengers, the Sierra Club and the Southern Borders Communities Coalition, that government officials did not have the power to spend more than Congress had already allocated for border security. U.S. District Judge Haywood Gilliam barred the government from using $2.5 billion in funds originally earmarked for military-personnel funds to build the border wall, and the U.S. Court of Appeals for the 9th Circuit declined to stay that ruling while the government appealed.

The case went to the Supreme Court which granted a stay in favor of the President, ruling 5 – 4 that construction on the border wall could proceed while the case progressed. As the New York Times reported at the time:

The Supreme Court on Friday gave President Trump a victory in his fight for a wall along the Mexican border by allowing the administration to begin using $2.5 billion in Pentagon money for the construction.

In a 5-to-4 ruling, the court overturned an appellate decision and said that the administration could tap the money while litigation over the matter proceeds. But that will most likely take many months or longer, allowing Mr. Trump to move ahead before the case returns to the Supreme Court after further proceedings in the appeals court.

The case has now made its way back to the Supreme Court, with the Department of Justice filing a Petition for Certiorari last month.

We also filed a brief in California v. Trump(N.D. Cal.), the other case now before the Supreme Court (consolidated with Sierra Club), We filed that brief at the U.S. District Court,  the same U.S. District Court whose ruling the Trump Administration has just appealed in Sierra Club. As we told you at the time, the left-leaning governments of 20 states sued to stop the Administration’s efforts to protect the border.

As we have argued in our briefs in the lower courts in these cases, and as we argued to the Supreme Court in our filing today:

The United States Constitution grants to the President inherent foreign affairs and national security powers. U.S. Const. art. II; Harisiades v. Shaughnessy, 342 U.S. 580, 588 (1952) (recognizing that immigration control is an integral part of article II authorities “in regard to the conduct of foreign relations [and] the war power”). “The Supreme Court has ‘long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’” Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016) (quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977)). This kind of power must include the power to protect and secure the border. Appellants have utilized those powers within a congressionally enacted and appropriated structure. Appellants’ § 8005 transfer accomplishes precisely that which the Constitution vested and Congress expressly authorized and funded Appellants with the power to do.

The ACLJ has engaged these issues consistently. We also filed an amicus brief in a case in D.C. where the Speaker Pelosi-led House of Representatives brought another lawsuit against the President’s authority to keep us safe. In fact, we filed briefs in the U.S. District Court and the U.S. Court of Appeals for the D.C. Circuit. That case is still pending.

Last month, in the Sierra Club and California cases in the Ninth Circuit, the Department of Justice filed a Petition for a Writ of Certiorari to the Supreme Court in support of transferring and using the funds to secure our southern border. Today, the ACLJ just filed our own brief at the Supreme Court, where, summarizing our arguments, we said:

Petitioners’ transfer of funds pursuant to § 8005 into its § 284(7) drug-interdiction account to support DHS with roads, fences, and lighting, is lawful. Congress authorized it through statutes and appropriations and Petitioners determined it was necessary for unforeseen military requirements. The lower court erred, imposing grave consequences upon our national and border security, as well as the constitutional structure and function of our national government.

And, as we conclude in our brief:

Petitioners have taken no unconstitutional or ultra vires action. The United States Constitution grants to the President inherent foreign affairs and national security powers. U.S. Const. art. II; Harisiades v. Shaughnessy, 342 U.S. 580, 588 (1952) (recognizing that immigration control is an integral part of article II authorities “in regard to the conduct of foreign relations [and] the war power”). “The Supreme Court has ‘long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’” Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016) (quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977)). This kind of power must include the power to protect and secure the border. Petitioners have utilized those powers within a congressionally enacted and appropriated structure. Petitioners’ § 8005 transfer accomplishes precisely that which the Constitution vested and Congress expressly authorized and funded Petitioners with the power to do. The lower courts’ decisions impact the entire nation’s security and confound the national government’s constitutional structure and functions.

For these reasons, Amicus respectfully urges this Court to grant the Petition for Certiorari.

It is essential that our border be secured. We need to be able to keep out dangerous gangs, criminals, and traffickers who would and have crossed our border undetected and blended into our country, putting all Americans at risk.

At the ACLJ, we’ve long argued that our immigration system is broken and must be fixed. As the descendant of immigrants, it is a priority to ensure legal immigration is possible for so many who come to our country to seek a better way of life. But we must also keep our nation secure. As we file at the Supreme Court, take action with us for our national security.

Jordan Sekulow

More Articles

Jordan Sekulow is the Executive Director of the American Center for Law and Justice (ACLJ).

Jordan Sekulow

Jordan Sekulow is the Executive Director of the American Center for Law and Justice (ACLJ).

PETITION

242,802 Signatures

Secure the Border. Build the Wall.

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ACLJ and DOJ Both Submit Critical Filings at Supreme Court To Support Our National and Border Security

By 

Jordan Sekulow

|

September 8

We’ve warned you that the radical Left is trying to block the President’s ability to secure our nation’s borders. House Speaker Nancy Pelosi and her colleagues have been fighting the President’s efforts to secure our border for a long time, putting our national security at risk.

The ACLJ is taking direct action –  again. Today we filed a new amicus brief at the U.S. Supreme Court in support of the President’s constitutional and statutory authority to keep our nation safe.

We already filed critical amicus briefs in the two cases now before the Supreme Court. In both cases, the Left challenged the President’s authority to reprogram congressionally approved funding for border security – which he is statutorily allowed to do.

In one of those cases we filed in – Sierra Club v. Trump, (9th Cir.) – the environmental group called the Sierra Club, along with the ACLU, persuaded a lower court to overrule the President’s lawful authority to utilize funds to construct roads, fences, and lighting in two specific sections of America’s southern border with Mexico – the El Paso and Yuma Sectors.

The Trump Administration appealed to the Ninth Circuit, filing an emergency motion to stay that lower court’s astonishing ruling.  But as reported, the Ninth Circuit declined the President’s request for a temporary stay.

The clash came to the court for the first time last year, after a federal district judge in California agreed with the challengers, the Sierra Club and the Southern Borders Communities Coalition, that government officials did not have the power to spend more than Congress had already allocated for border security. U.S. District Judge Haywood Gilliam barred the government from using $2.5 billion in funds originally earmarked for military-personnel funds to build the border wall, and the U.S. Court of Appeals for the 9th Circuit declined to stay that ruling while the government appealed.

The case went to the Supreme Court which granted a stay in favor of the President, ruling 5 – 4 that construction on the border wall could proceed while the case progressed. As the New York Times reported at the time:

The Supreme Court on Friday gave President Trump a victory in his fight for a wall along the Mexican border by allowing the administration to begin using $2.5 billion in Pentagon money for the construction.

In a 5-to-4 ruling, the court overturned an appellate decision and said that the administration could tap the money while litigation over the matter proceeds. But that will most likely take many months or longer, allowing Mr. Trump to move ahead before the case returns to the Supreme Court after further proceedings in the appeals court.

The case has now made its way back to the Supreme Court, with the Department of Justice filing a Petition for Certiorari last month.

We also filed a brief in California v. Trump(N.D. Cal.), the other case now before the Supreme Court (consolidated with Sierra Club), We filed that brief at the U.S. District Court,  the same U.S. District Court whose ruling the Trump Administration has just appealed in Sierra Club. As we told you at the time, the left-leaning governments of 20 states sued to stop the Administration’s efforts to protect the border.

As we have argued in our briefs in the lower courts in these cases, and as we argued to the Supreme Court in our filing today:

The United States Constitution grants to the President inherent foreign affairs and national security powers. U.S. Const. art. II; Harisiades v. Shaughnessy, 342 U.S. 580, 588 (1952) (recognizing that immigration control is an integral part of article II authorities “in regard to the conduct of foreign relations [and] the war power”). “The Supreme Court has ‘long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’” Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016) (quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977)). This kind of power must include the power to protect and secure the border. Appellants have utilized those powers within a congressionally enacted and appropriated structure. Appellants’ § 8005 transfer accomplishes precisely that which the Constitution vested and Congress expressly authorized and funded Appellants with the power to do.

The ACLJ has engaged these issues consistently. We also filed an amicus brief in a case in D.C. where the Speaker Pelosi-led House of Representatives brought another lawsuit against the President’s authority to keep us safe. In fact, we filed briefs in the U.S. District Court and the U.S. Court of Appeals for the D.C. Circuit. That case is still pending.

Last month, in the Sierra Club and California cases in the Ninth Circuit, the Department of Justice filed a Petition for a Writ of Certiorari to the Supreme Court in support of transferring and using the funds to secure our southern border. Today, the ACLJ just filed our own brief at the Supreme Court, where, summarizing our arguments, we said:

Petitioners’ transfer of funds pursuant to § 8005 into its § 284(7) drug-interdiction account to support DHS with roads, fences, and lighting, is lawful. Congress authorized it through statutes and appropriations and Petitioners determined it was necessary for unforeseen military requirements. The lower court erred, imposing grave consequences upon our national and border security, as well as the constitutional structure and function of our national government.

And, as we conclude in our brief:

Petitioners have taken no unconstitutional or ultra vires action. The United States Constitution grants to the President inherent foreign affairs and national security powers. U.S. Const. art. II; Harisiades v. Shaughnessy, 342 U.S. 580, 588 (1952) (recognizing that immigration control is an integral part of article II authorities “in regard to the conduct of foreign relations [and] the war power”). “The Supreme Court has ‘long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’” Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016) (quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977)). This kind of power must include the power to protect and secure the border. Petitioners have utilized those powers within a congressionally enacted and appropriated structure. Petitioners’ § 8005 transfer accomplishes precisely that which the Constitution vested and Congress expressly authorized and funded Petitioners with the power to do. The lower courts’ decisions impact the entire nation’s security and confound the national government’s constitutional structure and functions.

For these reasons, Amicus respectfully urges this Court to grant the Petition for Certiorari.

It is essential that our border be secured. We need to be able to keep out dangerous gangs, criminals, and traffickers who would and have crossed our border undetected and blended into our country, putting all Americans at risk.

At the ACLJ, we’ve long argued that our immigration system is broken and must be fixed. As the descendant of immigrants, it is a priority to ensure legal immigration is possible for so many who come to our country to seek a better way of life. But we must also keep our nation secure. As we file at the Supreme Court, take action with us for our national security.

Jordan Sekulow

More Articles

Jordan Sekulow is the Executive Director of the American Center for Law and Justice (ACLJ).

Jordan Sekulow

Jordan Sekulow is the Executive Director of the American Center for Law and Justice (ACLJ).

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Article Completion

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PETITION

242,802 Signatures

Secure the Border. Build the Wall.

Read Full Petition
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Last Name is required
Email is required
Zip Code is required

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