Trump Scheme to Fund Border Wall Illegal, 9th Circuit Rules

Government contractors erect a section of Pentagon-funded border wall along the Colorado River in Yuma, Ariz., on Sept. 10, 2019. (AP Photo/Matt York)

(CN) — President Donald Trump illegally circumvented Congress’ “power of the purse” by transferring $2.5 billion in Department of Defense funds to construct portions of the border wall in California, Arizona and New Mexico, the Ninth Circuit found Friday in a pair of rulings.

In an 102-page ruling, Chief U.S. Circuit Judge Sidney Thomas, a Bill Clinton appointee, found Trump violated the Appropriations Clause of the Constitution by illegally authorizing the transfer of Pentagon funds to cover border wall construction expenses in El Paso, Texas, and El Centro, California, along the southwest U.S.-Mexico border.

“The panel concluded that the district court correctly determined that the border wall was not an unforeseen military requirement, and that funding for the wall had been denied by Congress. Absent such statutory authority, the Executive Branch lacked independent constitutional authority to transfer the funds at issue here,” Thomas wrote, ruling in favor of California, New Mexico and a host of other states.

Without the illegally transferred funds, Thomas noted there would be inadequate funding to complete Trump’s border wall construction project, “and this would prevent both the alleged and environmental and sovereign injuries.”

Applauding the ruling, California Attorney General Xavier Becerra said “the court reminded the president — once again — that no one is above the law.”

“While the Trump Administration steals public funds to build an unauthorized wall at the southern border, families across the country are struggling to pay their bills. They deserve to know that their hard-earned dollars are going where the law intended — to benefit their families and their communities,” Becerra said in a statement.

The panel found California and New Mexico had standing to bring their claims, by 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.”

In the lengthy order, Thomas provided a detailed summary of the circumstances which led to the illegal transfer of funds at issue in the two Ninth Circuit orders.

Trump had invoked Section 8005 and Section 9002 of the DOD Appropriations Act of 2019 to divert federal funds appropriated for other military purposes to fund border wall construction.

Following the longest government shutdown in United States history during the 2018-19 impasse over federal budget negotiations, Trump issued a proclamation under the National Emergencies Act “that a national emergency exists at the southern border of the United States,” according to Thomas’ summary.

But those sections of the Appropriations Act explicitly limit the transfer of funds “in no case where the item for which the funds are requested has been denied by the Congress,” according to the ruling.

“Section 8005 does not confer a private right of action. Instead, it delegates a narrow slice of Congress’s appropriation power to DOD to allow the agency to respond flexibly to unforeseen circumstances implicating the national interest,” Thomas wrote.

“Section 8005’s limitations protect California’s and New Mexico’s sovereign interests, just as they protect Congress’s constitutional interests, because they ensure that, ordinarily, Executive action cannot override these interests without congressional approval and funding,” he added.

The provision allowing for the transfer of funds had been invoked to pay for hurricane and typhoon damage to military bases, “natural disasters that inflict damage that may not be anticipated or expected ahead of time,” Thomas wrote.

But drug smuggling across the U.S.-Mexico border “was not unanticipated or unexpected here,” Thomas found.

“Congress’s joint resolution terminating the president’s declaration of a national emergency only reinforces this point: there was no unanticipated crisis at the border. Nothing prevented Congress from funding solutions to this problem through the ordinary appropriations process — Congress simply chose not to fund this particular solution,” Thomas wrote.

In a second 82-page order in a similar lawsuit brought by the Sierra Club and Southern Border Communities Coalition, Thomas reiterated Congress, not the president, has the exclusive power to determine how federal funds are allocated.

“The Appropriations Clause of the U.S. Constitution exclusively grants the power of the purse to Congress. The panel held that the transfer of funds violated the Appropriations Clause, and, therefore, was unlawful,” Thomas wrote, joined in both opinions by U.S. Circuit Judge Kim McLane Wardlaw, also a Clinton appointee.

U.S. Circuit Judge Daniel Collins, a Trump appointee, dissented in both orders, arguing the states lacked cause of action to challenge the transfer of funds under the Administrative Procedure Act.

The Justice Department declined to comment on the rulings.

ACLU National Security Project senior attorney Dror Ladin called the ruling “a win for the rule of law, the environment, and border communities.”

“President Trump’s xenophobic wall is already leveling protected lands, desecrating cultural sites, and destroying wildlife. There’s no undoing the damage that’s been done, but we will be back before the Supreme Court to finally put a stop to this destructive wall,” Ladin said in a statement.

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