OAKLAND, Calif. (CN) – A federal judge indicated Friday he would likely block the Trump administration from diverting $1.6 billion in federal funds to build a wall on the U.S.-Mexico border, three months after President Donald Trump declared a national emergency to access billions in funds denied by Congress.
After the declaration of a national border emergency in February, a coalition of 20 states sued to stop Trump from diverting $6.7 billion in taxpayer dollars to the wall. After learning border construction was about to break ground in Arizona and New Mexico, the coalition moved for a nationwide preliminary block of the transfer of $1.6 billion from the Defense and Treasury departments earmarked for counternarcotics operations.
Congress has repeatedly rebuffed Trump’s calls to fund a border wall, at one point resulting in a record 35-day partial government shutdown in January. To reopen the government and prevent a second shutdown, Congress approved a nearly $1.4 billion appropriation for fencing along a stretch of the southwestern border, but made clear the money could not be used to build Trump’s promised wall.
Since his 2016 presidential campaign, Trump has contended a border wall is necessary to stop the flow of drugs and immigrants into the United States.
During a two-hour hearing Friday, Judge Haywood Gilliam rejected as disingenuous at least one argument proffered by the administration against the proposed injunction.
The argument pertains to $1 billion Trump told the Pentagon to transfer from its military personnel account to its drug interdiction account for border fencing. To access the money, the administration is relying on 10 U.S.C. § 284(b)(7), which authorizes the defense secretary to support other federal agencies in the “[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States," according to the plaintiffs. That account is funded through an appropriation made in the FY 2019 Department of Defense Appropriations Act.
To then transfer the money to the drug interdiction account, the administration is relying on § 8005 of that Appropriation Act, which states that the Defense Department's transfer authority “may not be used unless for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress.”
The states say Congress denied Trump access to Section 284 funds when it approved the $1.4 billion appropriation in February, which the administration's attorneys disputed Friday. According to Justice Department attorney James Burnham, the appropriations bill doesn't explicitly prohibit the Pentagon from using its 8005 transfer authority.
"If Congress wanted to restrict that authority, it could have done so," Burnham said, citing an explicit restriction on transfer authority in next year's bill.
"That is what an explicit restriction on using these statutory authorities would look like, and they didn't do that," Burnham said.
Gilliam, a Barack Obama appointee, began dismantling this argument.
"So your perspective is 'unforeseen' simply means the request was unforeseen?" he asked, noting Trump’s campaign promise of a border wall.
"Wouldn't every request from DHS (Department of Homeland Security) be unforeseen until the moment it was made?" he asked.
When asked why the Defense Department didn't request Section 284 funds from the get-go, Burnham explained the administration had planned to fund the entire cost of the wall with a direct appropriation from Congress.
"So it was Congress's denial of funding that was unforeseen?" Gilliam asked to snickers from the gallery.
Burnham repeated the core of his argument – that Congress must explicitly restrict the Defense Department's transfer authority.
"Everyone knew this was on the table," he said, referring to Congress.
"So everyone knew it was on the table yet it was unforeseen?" Gilliam asked to more snickers.
The states also challenge the transfer of $601 million from the Treasury Department to Homeland Security, $242 million of which has already been made available through construction contracts, according to their legal brief.
Some of this money is meant to go to the states for local law enforcement programs, and in legal briefs they contend they'll stop getting it if it's diverted to a border wall.
Gilliam questioned this contention Friday, noting the administration had "averred under oath that there was no basis this was likely to happen imminently” – a requirement for granting an injunction. And he suggested the money owed could easily be reimbursed.
Arguing for the coalition, California Deputy Attorney General Lee Sherman said the harm actually hinges on a delay in receiving the funds.
"These are significant funds the states use for public safety, which is a sovereign interest," Sherman said. "That is sufficient for irreparable harm."
Gilliam did not push back on this argument.
In its complaint, the coalition claims the diversion of funds toward a border wall is unconstitutional. The U.S. Constitution grants the power to legislate and appropriate only to Congress, and the coalition says Trump's actions "amount to a usurpation of Congress’s legislative powers."
The U.S. House of Representatives argued on behalf of the plaintiffs as amici Friday. The Democrat-controlled House filed its own complaint in Washington in April, claiming Trump's use of money from other government agencies to build the wall violates the Appropriations Clause of the U.S. Constitution.
The Sierra Club and the Southern Border Communities Coalition have also sued, and argued for their own preliminary injunction Friday. The groups want to block the administration from building portions of the wall in Yuma, Arizona, and El Paso, Texas, arguing wall construction will disrupt the biologically diverse ecosystems.
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