Fifth Circuit Approves of Use of Military Funds for Border Wall

Construction crews erect 30-foot steel bollard portions of the border wall along the U.S.-Mexico border in Arizona. (Photo courtesy Laiken Jordahl / Center for Biological Diversity)

DALLAS (CN) — The Fifth Circuit ruled Friday evening a federal judge erred in blocking the Trump administration from redirecting $3.6 billion from the military to build a wall at the border with Mexico, a decision that is certain to head to the Supreme Court.

In a 2-1 majority ruling, a three-judge panel with the New Orleans-based federal appeals court concluded plaintiffs El Paso County and the non-profit Border Network for Human Rights lack standing to sue President Donald Trump.

Chief U.S. Circuit Judge Priscilla Owen, a George W. Bush appointee,  wrote the plaintiffs failed to establish that they were injured when Trump declared a national emergency in 2019 before moving the money from several planned military construction projects. 

She was not persuaded by the county’s claim that it suffered economic injury due to the cancellation of a $20 million road project at Fort Bliss as a result, concluding the county must show “the county itself” suffered the injury.

“El Paso County is not directly harmed by the cancellation of the Fort Bliss project — no part of the $20 million would be paid by the county itself,” the 24-page majority opinion states. “Instead, El Paso County asserts that the cancellation of the project will reduce the county’s tax revenues, because a $20 million construction project within the county would necessarily generate taxes through workers staying at hotels, buying supplies, and spending money at local establishments.”

Judge Owen concluded the indirect loss of tax revenue does not qualify as an injury.

“Yet, incidental and attenuated harm is insufficient to grant a state or county standing,” Owen wrote. “If every local government could sue to challenge any federal expenditure at a military base, the courts ‘would cease to function as courts of law and would be cast in the role of general complaint bureau.’”

Judge Owen also disagreed with Border Network’s argument that it has standing because it was forced to divert time and resources to help members deal with the border wall construction.

“[T]he only concrete diversion of resources identified by BNHR is that the organization is giving significantly more ‘Know Your Rights’ presentations to the local community,” the majority opinion states. “The declaration admits that BNHR gave more presentations due to fear caused by the President’s proclamation, not due to any concern over the impacts of construction.”

The ruling reverses a block by U.S. District Judge David Briones in El Paso a year ago, who concluded the reallocation was illegal. Friday’s ruling also comes eleven months after the Fifth Circuit preliminarily lifted Briones’ block as it considered Trump’s appeal.

The case appears destined for the U.S. Supreme Court, as the Fifth Circuit has reached a different conclusion than the Ninth Circuit on Trump’s wall. The San Francisco-based Ninth Circuit ruled in June that a separate $2.5 billion that Trump reallocated from military counterdrug programs cannot be spent on the wall.

The Ninth Circuit concluded plaintiffs California and New Mexico had standing to sue by successfully showing “the actions of the federal defendants will cause particularized and concrete injuries in fact to the environment and wildlife of their respective states as well as their sovereign interests in enforcing their environmental laws.”

Judge Owen acknowledged the conflicting rulings in her opinion Friday, writing “we do not agree” with the Ninth Circuit’s finding of economic injury. 

Owen was joined in the majority by U.S. Circuit Judge Catharina Dubbelday, a fellow Bush appointee.

Border Network executive director Fernando Garcia said Friday evening the plaintiffs have already filed an appeal with the Supreme Court.

“We are disappointed in the court of appeals’ ruling and believe it is wrong, both because BNHR has clearly been injured by the President’s abuse of power, and for the reasons stated by Judge Dennis in his dissent,” Garcia said in an email. 

“We have already filed a petition in SCOTUS on this case and plan to continue to pursue our correct claim that the President’s actions were a clear abuse of his executive power, a clear usurpation of Congress’s power of the purse, and clearly injurious to the Border Network for Human Rights and the families we serve.“  

U.S. Circuit Judge James Dennis, a Bill Clinton appointee, wrote a lengthy 48-page dissenting opinion that agreed with the county that the cancellation of the Fort Bliss road project caused a “discrete, tangible” injury that is distinct from injuries suffered by other localities.

“[O]ne is hard pressed to imagine any plaintiff that would be capable of challenging the border wall construction and the funding transfers that facilitated it under the majority’s unduly onerous standard,” Dennis wrote.

Dennis concluded Congress only appropriated $1.375 billion for border wall construction in the Consolidated Appropriations Act of 2019. The law was passed after Congress failed to fully fund the wall, leading to a lengthy shutdown of the federal government. 

The judge said the law prevents the use of more money from the military to go to the wall.

President-elect Joe Biden has pledged to rescind the Trump declaration of a national emergency that triggered the use of military funds.

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