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Border wall funding fight expected to head to Supreme Court

A federal appeals court says the Trump administration lacked authority to redirect billions in military funds to finance its construction

A section of the border wall along the Rio Grande Valley sector of the Texas border last August.
A section of the border wall along the Rio Grande Valley sector of the Texas border last August. (Jinitzail Hernández/CQ Roll Call)

The 9th U.S. Circuit Court of Appeals ruled on Friday that the Trump administration does not have the authority to transfer billions of dollars in military funds to help finance the construction of the president’s long-promised border wall, potentially sending the fight back to the Supreme Court. 

In a 2-1 ruling, the appeals panel said the administration violated the Appropriations Clause of the Constitution, which gives Congress exclusive funding powers, when it transferred $2.5 billion slated for other purposes. 

“Here, the Executive Branch lacked independent constitutional authority to authorize the transfer of funds,” Chief Judge Sidney Thomas wrote in the majority opinion. “Therefore, the transfer of funds here was unlawful.”

The panel also affirmed a lower district court’s order blocking the transfer of funds for the construction of the wall. A Supreme Court ruling had allowed the construction to continue with the reshuffled Pentagon funds while the particulars of the case were hammered out in the courts.

The lawsuit was filed by the American Civil Liberties Union in 2019 on behalf of the Sierra Club and Southern Border Communities Coalition. 

[Trump touts more than 100 miles of new border wall during State of Union]

“This ruling is a win for the rule of law, the environment, and border communities,” Dror Ladin, staff attorney with the ACLU’s National Security Project, said in a statement. “President Trump’s xenophobic wall is already leveling protected lands, desecrating cultural sites, and destroying wildlife.”

The White House didn’t immediately respond to a request for comment.

Last year a divided Supreme Court lifted the lower court’s injunction that prevented the administration from reshuffling federal funds to build the border barriers. 

The Supreme Court majority, in a one-sentence description of its reasoning, wrote at the time that the environmental groups challenging the reprogramming did not demonstrate they had the legal right to do so. The five conservative justices gave the government the backing it needed, while the three liberal justices denied the government’s petition but did not say why.

The 9th Circuit panel majority disagreed in Friday’s ruling. Thomas wrote in the decision that these groups did have standing to challenge the transfer.

The ruling, however, puts the ball back in the hands of the nation’s high court since the Trump administration is expected to appeal.

“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 his statement. 

Building a wall along the southwest border was one of President Donald Trump’s biggest pledges during the 2016 presidential election campaign. Trump vowed to crack down on illegal immigration and said a border wall would deter migrants from unlawfully entering the county. 

Earlier this week, U.S. Customs and Border Protection announced that the agency had completed more than 200 miles of construction, which includes both replacement of existing fencing and adding new barrier in stretches that lacked it previously.

“Illegal drug and human smuggling activities have decreased in those areas where barriers are deployed,” acting CBP Commissioner Mark Morgan said in a statement. “Illegal cross-border traffic has also shifted to areas with inferior, legacy barriers or no barriers at all.” 

Friday’s case, Sierra Club v. Trump, is one of numerous lawsuits that have arisen against the venture. 

Democrats in Congress have tried to stop Trump from fulfilling his border wall pledge, calling it an ineffective use of taxpayer money. 

In February 2019, following a partial government shutdown, the Trump administration declared a national emergency to allocate up to $6.7 billion in previously appropriated funds from other government departments toward wall construction. The declaration came after Congress appropriated $1.375 billion for fiscal 2019 to build border barriers.

The funding for the border wall for fiscal 2020 was at the same level as fiscal 2019, falling short of Trump’s $5 billion request.

Camila DeChalus contributed to this report.

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