President Trump lacked the constitutional authority to repurpose $2.5 billion in military funds to construct barriers along the U.S.-Mexico border, a federal appellate court ruled Friday. In a 2-1 decision, a three-judge panel in San Francisco declared the transfer of funds unlawful, saying that the constitutional authority to appropriate federal money lies solely with Congress.
The decision by the 9th Circuit Court of Appeals is a setback for Mr. Trump, who has been vocal in his commitment to follow through on a campaign pledge of erecting a wall at the southern border to deter unauthorized crossings and drug smuggling.
“Here, the Executive Branch lacked independent constitutional authority to authorize the transfer of funds,” Chief Judge Sidney Thomas wrote in his opinion. “These funds were appropriated for other purposes, and the transfer amounted to ‘drawing funds from the Treasury without authorization by statute and thus violating the Appropriations Clause.'”
Judge Kim McLane Wardlaw, a fellow appointee of former President Bill Clinton, joined Thomas in the majority opinion. Judge Daniel Collins, who was appointed to the bench last year by Mr. Trump, dissented.
Mr. Trump made the construction of a border wall a major theme of his first presidential campaign, transforming it into a rallying cry for voters who supported his plan to crack down on illegal immigration and restrict legal immigration. Though he promised on the campaign trail that the Mexican government would finance the ambitious project, the president has repeatedly asked Congress for funds with little success.
Both his insistence and opposition from congressional Democrats led to the longest federal government shutdown in American history, an impasse that started in December 2018 and ended in January 2019.
The administration has allocated a pool of more than $15 billion in funds and used it to build more than 200 miles of bollard-type border barriers, most of which have replaced dilapidated and low structures designed to prevent the entry of motor vehicles. Most of the money, about $10 billion, has been diverted from the Pentagon’s multi-billion-dollar budget. Congress has authorized the rest of the funds.
Administration officials have vowed to complete 450 miles of border barriers by November.
Democratic Congressman Raúl M. Grijalva, who represents a border district in Arizona, lauded the 9th Circuit’s decision, highlighting concerns about the environmental impact of construction on federal lands and wildlife reserves.
“This court ruling reaffirms what we already knew: The Trump Administration broke the law when it stole congressionally-appropriated funds from the Defense Department to build his ridiculous vanity wall,” Grijalva said. “I’m pleased the court finally listened to the voices of border communities who have long decried the militarization, destruction, and waste that has accompanied border wall construction in their own communities.”
The Justice Department is likely to appeal Friday’s ruling to the conservative-leaning Supreme Court, which lifted a lower court order last summer that had blocked another $2.5 billion transfer of military funds for border wall construction.
Alexei Woltornist, a spokesperson for the U.S. Department of Homeland Security — which is overseeing border barrier construction — said the department is “sorely disappointed in this decision.”