https://www.supremecourt.gov/opinions/18pdf/19a60_o75p.pdfCite as: 588 U. S. ____ (2019) Opinion of BREYER, J. SUPREME COURT OF THE UNITED STATES No. 19A60 DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL. v. SIERRA CLUB, ET AL. ON APPLICATION FOR STAY [July 26, 2019] The application for stay presented to JUSTICE KAGAN and by her referred to the Court is granted. Among the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to ob-tain review of the Acting Secretary’s compliance with Sec-tion 8005.
The District Court’s June 28, 2019 order granting a permanent injunction is stayed pending disposition of the Government’s appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government’spetition for a writ of certiorari, if such writ is timely sought.
Should the petition for a writ of certiorari be denied, this stay shall terminate automatically.
In the event the peti-tion for a writ of certiorari is granted, the stay shall termi-nate when the Court enters its judgment.
JUSTICE GINSBURG, JUSTICE SOTOMAYOR, and JUSTICE KAGAN would deny the application.
JUSTICE BREYER, concurring in part and dissenting inpart from grant of stay.
To warrant this stay, the Government must show not just(1)a reasonable probability that the Court will grant certi-orari and (2) a fair prospect that the Court will reverse, butalso (3) “‘a likelihood that irreparable harm will result from the denial of a stay.’†Maryland v. King, 567 U. S. 1301, 1302 (2012) (ROBERTS, C. J., in chambers).
This case raises novel and important questions about the ability of private parties to enforce Congress’ appropriations power.
I would express no other view now on the merits of those questions. Before granting a stay, however, we must still assess the competing claims of harm and balance the equities. Barnes v. E-Systems, Inc. Group Hospital Medical & Surgical Ins. Plan, 501 U. S. 1301, 1305 (1991) (Scalia, J., in chambers).
This Court may, and sometimes does, “tailor a stay so thatit operates with respect to only ‘some portion of the proceed-ing.’†Trump v. International Refugee Assistance Project, 582 U. S. ___, ___ (2017) (per curiam) (slip op., at 10) (quot-ing Nken v. Holder, 556 U. S. 418, 428 (2009)).
In my view,this is an appropriate case to do so. If we grant the stay, the Government may begin construc-tion of a border barrier that would cause irreparable harmto the environment and to respondents, according to bothrespondents and the District Court.
The Government’s onlyresponse to this claim of irreparable harm is that, if re-spondents ultimately prevail, the border barrier may betaken down (with what funding, the Government does not say). But this is little comfort because it is not just the bar-rier, but the construction itself (and presumably its later destruction) that contributes to respondents’ injury.
If we instead deny the stay, however, it is the Govern-ment that may be irreparably harmed.
The Government has represented that, if it is unable to finalize the contracts by September 30, then the funds at issue will be returned to the Treasury and the injunction will have operated, ineffect, as a final judgment.
Respondents suggest a court could still award the Government relief after an appropria-tion lapses, though that proposition has yet to be endorsed by this Court.But there is a straightforward way to avoid harm to both the Government and respondents while allowing the litiga-tion to proceed.
Allowing the Government to finalize thecontracts at issue, but not to begin construction, would al-leviate the most pressing harm claimed by the Government without risking irreparable harm to respondents.
Respond-ents do not suggest that they will be harmed by finalization of the contracts alone, and there is reason to believe theywould not be.
See, e.g., 36 Opinion of Office of Legal Coun-sel 11 (2012) (noting that, because of the Anti-Deficiency Act, “the government [is] legally incapable of incurring a contractual obligation to pay more money than Congress had appropriatedâ€), online at
https://www.justice.gov/file/20596/download (as last visited July 26, 2019); see also Lei-ter v. United States, 271 U. S. 204, 206–207 (1926); Sutton v. United States, 256 U. S. 575, 580–581 (1921); Hooe v. United States, 218 U. S. 322, 332–334 (1910); Bradley v. United States, 98 U. S. 104, 116–117 (1878).
I can therefore find no justification for granting the stay in full, as the majority does.
I would grant the Govern-ment’s application to stay the injunction only to the extentthat the injunction prevents the Government from finaliz-ing the contracts or taking other preparatory administra-tive action, but leave it in place insofar as it precludes theGovernment from disbursing those funds or beginning con-struction.
I accordingly would grant the stay in part and deny it in part.
