Three days after President Trump took his re-election campaign to a construction site of his border wall in Arizona, a federal appeals court ruled Friday that he had defied Congress’ constitutional authority over federal spending by redirecting $2.5 billion in military funds to build 130 miles of barriers in California, Arizona, and New Mexico.
Congress appropriated the funds for military pay, weapons and other Defense Department purposes, and never authorized Trump to spend them on wall construction, the Ninth U.S. Circuit Court of Appeals in San Francisco said in a pair of 2-1 rulings.
Funding for the wall had been denied by Congress,” and the Trump administration “lacked independent constitutional authority to authorize the transfer of funds,” said Chief Judge Sidney Thomas, joined by Judge Kim Wardlaw. Both were appointed by President Bill Clinton.
Judge Daniel Collins, a Trump appointee, dissented from both decisions. He said the military funds were legally transferred and also that the plaintiffs — California and 15 other states, the Sierra Club, and an advocacy group for border communities — had no right to sue over the alleged violation of congressional spending powers.
Although the appeals court upheld a federal judge’s injunction against the construction of the wall segments, the ruling did not halt construction. The Supreme Court voted 5-4 last July to allow the work to continue while the case proceeded. Its brief unsigned decision said the administration “has made a sufficient showing at this stage that the plaintiffs have no cause of action” — that is, that they had not shown direct harm from the construction that would entitle them to challenge it in court.
The appeals court majority reached a different conclusion, citing the plaintiffs’ claims that the wall was harming the environment and wildlife at the border and the states’ ability to enforce their own environmental laws. Similar issues are pending before the same panel in a case over $3.6 billion for additional wall segments, and the dispute could soon return to the high court.
“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,” said Dror Ladin, an American Civil Liberties Union lawyer representing the Sierra Club and the Southern Border Communities Coalition. He said Trump’s “xenophobic wall is already leveling protected lands, desecrating cultural sites and destroying wildlife.”
The appeals court “reminded the president — once again — that no one is above the law,” said California Attorney General Xavier Becerra.
The Trump administration’s Justice Department declined to comment on the ruling.
After Congress refused to approve funds for the wall in 2018, Trump shut down many government operations for a record 35 days. When lawmakers then approved only $1.375 billion for limited barrier construction, the president declared a state of emergency over illegal immigration and said he would fund the wall with $8.1 billion that was in the budget for other purposes.
Some of the $2.5 billion at issue in Friday’s case was taken from Defense Department funds under a law that allows the Pentagon to redirect spending for important “unforeseen military requirements.” Other funds came from congressional appropriations to stop drug smuggling.
But “the border wall was not an unforeseen military requirement,” Thomas said in the majority opinion. He also said the administration had not shown any evidence that a wall would reduce drug smuggling, citing Justice Department reports that smugglers most commonly bring drugs across the Southwest border in motor vehicles at U.S. ports of entry.
Both the states and private organizations whose members live at or travel to the border have a right to challenge the construction, Thomas said. For the Sierra Club, he said, the “unconstitutional transfer of funds” harmed their members’ “environmental, aesthetic, and recreational interests.”
In dissent, Collins said neither the states nor the private plaintiffs had any rights at stake in the funding dispute between Congress and the president. He also said Congress had assigned the military to support “counter-drug activities” of other agencies, and, in the Defense Department budget, had authorized the Pentagon to decide whether “unforeseen military requirements” justified funding for a “higher priority item.”
Transfers of funding for the wall “were thus based on ‘military requirements’ that were ‘unforeseen’” and never forbidden by Congress, Collins said.