SAN FRANCISCO (CN) – Fighting to overturn a stayed injunction barring the use of $2.5 billion from military accounts for a border wall, a Trump administration lawyer told a Ninth Circuit panel Tuesday that Congress never expressly forbade using military funds for the project.
Congress refused to allocate more than $1.375 billion for border security in January 2019 after a month-long government shutdown, but that doesn't mean Congress "implicitly acted to prohibit the use of a statutory transfer" within the Department of Defense's budget, Justice Department lawyer Thomas Byron argued in court.
U.S. Circuit Judge Daniel Collins, a President Donald Trump appointee, appeared open to that reasoning. He asked a lawyer for the state of California, which sued to block the border wall funding, why the military can't move around money to use as it sees fit.
"If the statute says they can move the money, what prevents them from moving the money," Collins asked.
"The Constitution," California Deputy Attorney General James Zahradka II replied, arguing doing so violates the separation of powers which holds that Congress has exclusive control over approving funding.
If there was any doubt regarding Congress' intent, an attorney for the U.S. House of Representatives attempted to make things crystal clear for the three-judge panel. Appearing as a nonparty in the lawsuit and "friend of the court' through the filing of an amicus brief, House of Representatives lawyer Douglas Letter was given special permission to address the panel Tuesday.
"They said what you want the money for is not a good use of taxpayer funds," Letter told the panel, describing Congress' decision to deny the Department of Homeland Security's full budget request.
Legislative intentions aside, Byron argued the law still authorizes the Pentagon to transfer funds to address "unforeseen" high-priority issues when Congress has not specifically prohibited using money for that purpose.
The Trump administration says a border wall is needed to combat drug smuggling. Plaintiffs, including California, New Mexico and Sierra Club, say the administration has no evidence connecting the volumes of drugs seized across the entire southwestern U.S. to drug smuggling at ports of entry.
The administration also argues the environmental harms plaintiffs say they will suffer if the wall is built are far less important than the harms associated with illegal drug smuggling.
“Plaintiffs’ interests in hiking, bird watching, and fishing – in several drug-smuggling corridors along the international border with deteriorating existing barriers – do not come close to outweighing the irreparable harm to the government and the public from interfering with efforts to stop the flow of drugs entering the country," the Justice Department wrote in an appeal brief.
Another issue is whether the plaintiffs have standing to sue. The Justice Department insists only someone harmed by the transfer of Department of Defense funds, rather than the use of those funds, has standing to sue in court. The Supreme Court has previously ruled that plaintiffs must be within the "zone of interests” – affected by a particular statute – to have standing.
"Is anyone in the zone of interests that could challenge the border wall funding," Chief U.S. Circuit Judge Sidney Thomas asked.
Byron replied that a contractor who would have received money from the military funding that was transferred might have standing to sue, but no contracts were awarded with the funding and no such contractor exists.
Accepting that interpretation would result in a preposterous outcome in which no one could challenge the administration's violation of constitutional principles, argued Dror Ladin, an American Civil Liberties Union attorney arguing for the Sierra Club.
"If the government is correct, there's simply a billion-dollar slush fund lying around waiting for the administration to use," Ladin said.
This past July, the U.S. Supreme Court lifted the injunction blocking the Trump administration from using the $2.5 billion in Pentagon funds for the wall while the Ninth Circuit considers the case.
U.S. Circuit Judge Kim Wardlaw joined Thomas and Collins on the panel. Wardlaw and Thomas are both Bill Clinton appointees.
The $2.5 billion in military funds is just one slice of funding the administration has pulled from various sources for Trump’s long-promised border wall. The administration also freed up another $3.6 billion for the project by declaring a national emergency in February. Another $600 million was pulled from the Treasury Department.
A hearing on whether Trump can use $3.6 billion for the border wall by declaring a national emergency and deferring foreign and domestic military construction projects is scheduled for Nov. 20 in U.S. District Judge Haywood Gilliam's courtroom in Oakland, California.
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