Last month, a federal district court judge issued an injunction against using $3.6 billion dollars of Pentagon funds to construct more border wall. Yesterday, the U.S. Court of Appeals for the Fifth Circuit, in a very brief opinion, reversed that decision and lifted the injunction.
No one should be surprised to learn that the district court judge who blocked the use of the funds, David Briones, was appointed by President Clinton. Nor should anyone be surprised to learn that the Fifth Circuit’s 2-1 decision was along party lines.
The two Republican appointed judges — the great Edith Jones (appointed by President Reagan) and Andrew Oldham (appointed by President Trump) — formed the majority. Stephen Higginson, an Obama appointee, dissented.
The Fifth Circuit’s ruling doesn’t end the litigation. It just means that the administration can use the funds in question for wall construction while the litigation proceeds on the merits.
However, a key element in deciding whether an injunction should be (or properly was) issued is the likelihood that the party seeking it will succeed on the merits. In this case, the Fifth Circuit found, among other unspecified reasons for its ruling, a “substantial likelihood” that the parties seeking to block the funding “lack Article III standing.” Without standing, these parties lose the case.
President Trump promptly declared victory. This morning, he tweeted:
Breaking News: The Fifth Circuit Court of Appeals just reversed a lower court decision & gave us the go ahead to build one of the largest sections of the desperately needed Southern Border Wall, Four Billion Dollars. Entire Wall is under construction or getting ready to start!
Candidate Trump promised a border wall that Mexico would pay for. The second part of this promise was so unrealistic that it resembled a joke. But at least President Trump is a step closer to fulfilling the first part of his promise.
Let’s hope he gets it done and that it helps curb illegal immigration.