A federal judge in California issued a ruling Friday night that blocks a plan by the Trump administration to channel federal money towards the construction of a wall on the US-Mexico border. President Trump used a national emergency in February to begin the process of diverting the funds from the military and other sources; for now, at least some of that money must stay where it is.
The decision by Judge Haywood Gilliam, who was appointed to the federal bench during the Obama administration, specifically blocks the “reprogamming” of $1 billion in Army personnel funds for wall projects in Yuma, Arizona and El Paso, Texas.
The suit was brought by the Southern Border Communities Coalition, a group of activists in the border region who work with the American Civil Liberties Union (which acted as counsel), and the Sierra Club. The plaintiffs contended that harm would be done to their communities by the wall construction projects; they argued the projects were illegal due to the manner in which the administration sourced its funding.
In his decision, Gilliam explained that he issued an injunction halting the use of the money because the Trump administration sought to circumvent Congress’s role as the branch of government with the power to appropriate federal funds.
“Congress’s ‘absolute’ control over federal expenditures — even when that control may frustrate the desires of the Executive Branch regarding initiatives it views as important — is not a bug in our constitutional system,” Gilliam wrote in a 56-page decision. “In short, the position that when Congress declines the Executive’s request to appropriate funds, the Executive nonetheless may simply find a way to spend those funds ‘without Congress’ does not square with fundamental separation of powers principles dating back to the earliest days of our Republic.”
As Gilliam notes, the executive branch did try to go through Congress in getting border wall funding. Vox’s Dara Lind reports that lawmakers gave the White House $341 million in 2017 and $1.375 billion in 2018 to upgrade and repair to existing wall infrastructure. A fight over wall funding that led to an extended government shutdown early in 2019 ended in an agreement for an additional $1.375 billion. This was far less than the $5.7 billion Trump hoped to receive, and after the government reopened, he declared a national emergency, announcing plans to use the powers given to him by the National Emergencies Act to use federal funds to make up the difference.
Gilliam took aim at this use of presidential emergency authority — which by statute is meant to be invoked during “unforeseen” circumstances — writing that the issue of border wall money was in no way unforeseen.
The judge noted Trump first began discussing possible ways of paying for an extended US-Mexico border wall during his 2016 campaign and that he looked to Congress for wall money on multiple occasions: “Defendants’ argument that the need for the requested border barrier construction funding was ‘unforeseen’ cannot logically be squared with the Administration’s multiple requests for funding for exactly that purpose dating back to at least early 2018.”
Gilliam also wrote that although the Department of Defense (DoD) was asked to take the unusual step of reallocating the $1 billion in funds and making them available to the Department of Homeland Security without first asking Congress if it could do so (as is custom), the fact that the situation is extraordinary does not make it unforeseen.
“There is no logical reason to stretch the definition of ‘unforeseen military requirement’ from requirements that the government as a whole plainly cannot predict (like the need to repair hurricane damage) to requirements that plainly were foreseen by the government as a whole (even if DoD did not realize that it would be asked to pay for them until after Congress declined to appropriate funds requested by another agency). Nothing presented by the Defendants suggests that its interpretation is what Congress had in mind when it imposed the ‘unforeseen’ limitation, especially where, as here, multiple agencies are openly coordinating in an effort to build a project that Congress declined to fund.”
In another interesting shot, Gilliam pointed out in a footnote that the government hasn’t actually done much with the money that Congress did appropriate for barrier construction: “The Court observes that, although Congress appropriated $1.571 billion for physical barriers and associated technology along the Southwest border for fiscal year 2018, counsel for the House has represented to the Court that the Administration has stated as recently as April 30, 2019 that CBP represents it has only constructed 1.7 miles of fencing with that funding … This representation tends to undermine Defendants’ claim that irreparable harm will result if the funds at issue on this motion are not deployed immediately.”
The administration has used the funds appropriated in 2017, having nearly completed the work on the 40 miles of wall that $341 million was meant to cover; it planned to begin using the money reprogrammed from the Army personnel funds Saturday.
The executive branch has yet to comment on the ruling, but it is now left with a few options: It can — and likely will — appeal the decision; it can also work to find other sources of funding for the projects blocked by the injunction; and, it could also move its focus to other areas of the border beyond Yuma and El Paso, the two areas mentioned in the ruling. However, Gilliam left the door open for further injunctions should the president respond to the ruling by launching new projects elsewhere, writing the plaintiffs could return to court seeking new injections if that happens.
This is likely to be just one step in what is likely to be an ongoing legal fight. Indeed, House Democrats have also filed a lawsuit against the White House’s emergency wall funding efforts — using a precedent established by House Republicans during the Obama years, in seeking to stop administration spending efforts. In a hearing this past Thursday, though, Trump-appointed Judge Trevor McFadden expressed skepticism about involving the judiciary in the fight, asking if Congress had, “utilized all the tools at its disposal before rushing to court.”
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