- The Washington Times - Monday, October 4, 2021

The Supreme Court on Monday erased a lower court ruling that had found against President Trump’s border-wall emergency and sent the case back to the judge to take another look, given the “changed circumstances” with President Biden now in office.

Mr. Trump, after watching Congress cut his request for wall money, had sought to siphon funding from Pentagon accounts toward the wall, drawing a flurry of lawsuits. 

A federal district judge in California had ruled the funding shift illegal and a panel of the 9th U.S. Circuit Court of Appeals agreed. But the Supreme Court had allowed the construction to continue while the case made its way through the courts.

Mr. Biden, on taking office, canceled the emergency declaration used to siphon the money and returned unspent funds.

The high court’s move Monday meant the justices agreed to take the appeal, then vacated the district judge’s initial ruling, erasing it as a precedent, and asked the lower courts for a new look at where things stand.



“The District Court should consider what further proceedings are necessary and appropriate in light of the changed circumstances in this case,” the justices said in a brief order.

The high court had taken a similar step to erase a precedent in another border wall case earlier this year, but that appeal had been granted while Mr. Trump was still in office.

Border wall opponents had urged the justices to reject this appeal, though, saying it is “unprecedented” for the court to accept the case “of a non-moot, non-certworthy petition in the absence of either a confession of error or a finding that the lower court may not have considered facts or law that could plausibly alter the lower court’s analysis.”

“The decision below does not impede any government function or threaten a flood of litigation, and there is no plausible reason that the government’s decision to end construction would lead the lower courts to decide the cause of action or legality of construction differently,” the Sierra Club, a chief plaintiff in the case, wrote in its briefs.

The Biden Justice Department, though, had said vacating the lower court rulings was the right approach, defending the executive branch’s emergency powers, while saying Mr. Trump’s specific declaration wasn’t warranted.

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