OAKLAND, Calif. (CN) – The Department of Defense cannot use military construction funds to build a wall along the southern border wall as part of a declared national immigration emergency, a federal judge ruled Wednesday.
U.S. District Judge Haywood Gilliam rejected the government’s theory that the $3.6 billion diverted from the military is necessary to help the Department of Homeland Security stem the flow of immigrants into the United States.
As justification, the Department of Defense relied on 10 U.S. Code § 2808, which allows administrations to spend military construction funds on projects necessary to support the armed forces in the event of a national emergency requiring the armed forces.
The Sierra Club, the state of California and a slew of other states sued to stop the funding diversion from going forward, claiming the Pentagon overstepped its authority by trying to circumvent Congress. Lawmakers had refused to allocate more than $1.375 billion for border security in January 2019 after a month-long government shutdown.
Gilliam rejected the government’s interpretation of Section 2808, finding the military does not have limitless authority to build projects that would benefit civilian agencies like the Department of Homeland Security.
“Defendants do not explain how the projects are necessary to support the use of the armed forces while simultaneously obviating the need for those forces,” he wrote. “Under their theory, any construction could be converted into military construction—and funded through Section 2808—simply by sending armed forces.”
Gilliam was also unconvinced that the 175 miles of proposed border barrier construction falls under military jurisdiction just because the Pentagon designated all of the land needed for the projects as a military installation by assigning it to the Fort Bliss army base near El Paso, Texas.
“Although defendants attempt to reassure the court that they ‘are not arguing that the entire southern U.S. border’ constitutes a military installation for purposes of Section 2808, there is nothing in their interpretation to preclude them from doing so,” Gilliam wrote, noting that much of the land is located hundreds of miles away from El Paso.
“Under this interpretation, construction can be considered ‘carried out with respect to a military installation’ even if it is otherwise wholly unrelated to the installation’s functions, purpose, or even geography. Indeed, defendants do not offer any substantive connection between the proposed construction here and Fort Bliss.”
Gilliam continued, “The court is not persuaded that Congress intended ‘military construction’ to have no stronger connection to a military installation than defendants’ own administrative convenience. If this were true, defendants could redirect billions of dollars from projects to which Congress appropriated funds to projects of defendants’ own choosing, all without congressional approval.”
In arguing that the Sierra Club and the states cannot challenge the use of military construction funds, the government used the same arguments in another case pending before the Ninth Circuit over a separate $2.5 billion in counter-drug money to fund the border wall against Congress’ wishes. While Gilliam temporarily prohibited the Department of Defense from using that money in a previous order, in July the U.S. Supreme Court stayed Gilliam's injunction until the case is decided by the Ninth Circuit.
Though the government pointed to one sentence in the Supreme Court’s stay indicating it might prevail in that separate border wall case, Gilliam said that does not preclude him from ruling here that the Sierra Club and the states have sufficient interests at stake and can pursue their case.
“At this stage, the court can only speculate regarding the reasoning underlying the stay, including what it means for how the Supreme Court may ultimately assess the merits of these two cases,” Gilliam wrote.
Gilliam permanently blocked the use of that $3.6 billion in Wednesday’s ruling, but stayed the decision while the case makes its way through the inevitable appeals process.
“We will be back before the Ninth Circuit very soon,” said ACLU attorney Dror Ladin, who represents the Sierra Club, in a statement.
In a statement, Attorney General Xavier Becerra called Gilliam’s ruling "a critical victory that sends a strong message to the White House: you are not above the law.”
“We applaud the court for declaring unlawful President Trump’s desperate attempt to divert money from important military construction projects to build his unnecessary border wall Congress refused to fund,” Becerra added.
Gilliam’s ruling comes one day after a federal judge in Texas issued a nationwide injunction against the border wall, which remains in effect.
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