By JOSH GERSTEIN Updated:
A divided federal appeals court has lifted a lower court’s order blocking $3.6 billion in military construction funds that President Donald Trump planned to use to finance an expanded and improved border wall.
The New Orleans-based 5th U.S. Circuit Court of Appeals issued a brief order on Wednesday granting the Trump administration’s request to stay the injunction that U.S. District Court Judge David Briones, based in El Paso, Texas, issued last month.
The three-judge appeals court panel split along ideological lines, with two Republican appointees voting to temporarily set aside the injunction and the sole Democratic appointee dissenting.
Judges Edith Jones, an appointee of President Ronald Reagan, and Andrew Oldham, a Trump appointee, also said there was a “substantial likelihood” that the plaintiffs in the Texas-based suit — the City of El Paso and the Border Network for Human Rights — lacked legal standing to pursue their claims that Trump’s planned spending violated appropriations limits imposed by Congress.
Judge Stephen Higginson, an appointee of President Barack Obama, said he was not convinced that the Justice Department had a winning case or that there was great urgency justifying the stay.
“Although I agree with my colleagues that this matter presents ‘a substantial case on the merits’ and involves a ‘serious legal question…’ I am unable to agree, without focused panel deliberation and discussion — possibly aided by dialogue with counsel — that the government presently has shown either a likelihood of success on the merits or irreparable harm in the absence of a stay,” Higginson wrote in his dissent.