Ninth Circuit Upholds Freeze on Pentagon Cash for Trump’s Border Wall

Border Patrol agent Vincent Pirro walks towards prototypes for a border wall in San Diego, Feb. 5, 2019. An appeals court has upheld a freeze on Pentagon money to build a border wall with Mexico, casting doubt on President Donald Trump’s ability to make good on a signature campaign promise before the 2020 election. (AP Photo/Gregory Bull, File)

SAN FRANCISCO (CN) – In a 2-1 decision on Wednesday, the Ninth Circuit rejected the Trump administration’s attempt to suspend a federal judge’s order blocking the use of $2.5 billion in military funding to build part of a southern border wall.

U.S. Circuit Judges Richard Clifton and Michelle Friedland, who authored the majority opinion, said Trump is unlikely to win his appeal of U.S. District Judge Haywood Gilliam’s order last Friday permanently enjoining the feds from building sections of the wall in California, New Mexico, Arizona and Texas.

Clifton and Friedland agreed with Gilliam that Trump’s diversion of military funding fails to square with the Appropriations Clause of the U.S. Constitution. They said the need for the money was not unforeseen, as the feds argued, and it was a budget item that Congress had already denied.

The Department of Defense had relied on section 8005 of the Department of Defense Appropriations Act of 2019 to move the funds to the Department of Homeland Security.

But the unauthorized use of those funds, the judges wrote, “violates the constitutional requirement that the Executive Branch not spend money absent an appropriation from Congress.”

They added, “As for the public interest, we conclude that it is best served by respecting the Constitution’s assignment of the power of the purse to Congress, and by deferring to Congress’s understanding of the public interest as reflected in its repeated denial of more funding for border barrier construction. We therefore hold that a stay of the district court’s order granting plaintiffs an injunction is not warranted.”

In their 75-page ruling issued late Wednesday, the appellate judges said their decision does not address any other potential sources of funding, only those diverted from the military. They also made sure to note that they are not determining whether the funds being diverted, or “reprogrammed” as they refer to it in the ruling, are for a worthy cause.

Two different federal lawsuits were filed challenging Trump’s executive order, spurred by Congress’ failure to allocate funding to his border wall. Trump had requested $2.6 billion for border security in his 2018 budget.

The first lawsuit was brought by California on behalf of 20 other states. The second lawsuit was filed by the American Civil Liberties Union on behalf of the Southern Border Communities Coalition and the Sierra Club.

Both said the administration had not satisfied the requirements of section 8005 and that the move was unconstitutional in any case since it was not supported by Congress.

The Ninth Circuit’s ruling addressed the environmental groups’ lawsuit.

The feds had argued that the primary harm in delaying wall construction would be the flow of deadly drugs into the United States, saying Customs and Border Protection had recorded over 4,000 “drug related events” in 2018 at sections of the border near Tuscon, Yuma, El Centro and El Paso.

But the judges were unmoved.

“If these specific leaks are plugged, will the drugs flow through somewhere else? We do not know, but the evidence before us does not support a conclusion that enjoining the construction of the proposed barriers until this appeal is fully resolved will have a significant impact,” Clifton and Friedland wrote.

In his dissent, Judge N. Randy Smith said his colleagues had taken a “risky” and “uncharted” approach by recasting a statutory question as a constitutional one.

“The majority has created a constitutional issue where none previously existed,” Smith wrote.

Smith said the case was fundamentally about the requirements of section 8005, and that the Constitution should not have been invoked. He relied on Dalton v. Specter, where the U.S. Supreme Court ruled that an executive order shutting down a naval base was not subject to judicial review, noting that courts would have to deem unconstitutional any executive action that exceeds its statutory authority.

Smith also disagreed with Clifton and Friedland that Trump would likely lose on appeal, saying the feds’ interest in securing the border against the flow of narcotics outweighs the Sierra Club’s recreational interest in enjoying public land.

“Given this significant national security interest, the public would benefit more from a stay that—while this appeal is pending—permits defendants to effect the policies that it has determined are necessary to minimize that threat, than it would from a decision that hampers defendants’ ability to combat this threat throughout the present appellate process,” Smith wrote.

In a statement late Wednesday, California Attorney General Xavier Becerra applauded the ruling.

“The President is not above the law and can’t ignore our country’s constitutional and democratic principles just to protect his own vanity,” he said.

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