The US Court of Appeals for the Fifth Circuit on Wednesday overruled an injunction granted last month by a lower court that blocked $3.6 billion in government funds intended to be used on the construction of the border wall.
The three-judge panel was divided along ideological lines. The two Republican-appointed judges, Judges Edith Jones, appointed under President Ronald Reagan, and Judge Andrew Oldham, appointed under President Donald Trump, formed the majority opinion, with Judge Stephen Higginson, appointed under President Barack Obama, writing the dissent.
In their majority opinion, the judges justified their decision with two different factors. First, they noted that the “Supreme Court recently stayed a similar injunction from our sister circuit” in Trump v. Sierra Club last year—a ruling that allowed the Trump administration to spend Department of Defense funds on the border wall. Second, the majority opinion also stated that there was a “substantial likelihood that Appellees lack Article III standing,” suggesting that the City of El Paso and the Border Network for Human Rights lack sufficient legal standing to bring suit against the president for violating congress’s appropriation limits.
In his dissent Higginson voiced concerns that although he agrees that “this matter presents ‘a substantial case on the merits’ and ‘involves a serious legal question,'” he also believes this case should not be decided “without focused panel deliberation and discussion.” Higginson also stated that he was unable to agree that the “government presently has shown either a likelihood of success on the merits or irreparable harm in the absence of a stay.”
This decision also blocks the plaintiff’s request to expedite the case. Although the majority opinion did not explain this decision, the dissent strongly objected to it. Higginson also stated that regardless of the decision of the court, the case should be expedited. He made this recommendation because a “constellation of sensitive and complex legal questions, all in the context of a nationwide injunction, warrant expediting the appeal for prompt consideration of the merits.”
The plaintiffs are expected to appeal this decision to the US Supreme Court, where it is uncertain if the case will be heard.