In Sierra Club v. Trump, USCA9 No. 19-16102, the Government has filed an emergency motion for stay of the injunction against the use of transferred DoD funds for building border barriers. Given the relevant time frames, the stay may be the whole ball game. If USCA9 declines, expect a motion to the SCOTUS.
The district court enjoined defendants from completing two border barrier projects the Department of Defense (DoD) is constructing pursuant to its counter-drug support authority in 10 U.S.C. ยง 284 "using funds reprogrammed by DoD under Section 8005 of the Defense Appropriations Act, 2019." Order 55. As set forth more fully in the motion below, the district court's preliminary injunction imposes irreparable harm on the defendants and the general public because it prevents DoD from completing the two projects at issue, which are necessary to block identified drug-smuggling corridors identified by the Department of Homeland Security as among its highest priority projects. Unless stayed, the preliminary injunction threatens to permanently deprive DoD of its ability to complete the two projects at issue because the injunction forbids DoD from spending approximately $424 million it has transferred for construction of the projects but has not yet obligated via construction contracts. Unless those funds are obligated by September 30, 2019, the money will no longer remain available to DoD. The complex and time-consuming process to obligate the remaining money requires DoD to take multiple steps before the September 30 deadline. The contracts contemplate that those steps will take 100 days; DoD thus expects to begin that process by late June. Any delays beyond that point increase the risk that the process cannot be completed in the limited time available, and that the projects will be compromised or, if there is further delay, that the unobligated funds will no longer be available. A decision by June 17, 2019, would allow the parties time to seek emergency relief, if necessary, from the Supreme Court.Not exactly subtle in that last sentence.
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