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9th Circuit Rules Trump Can’t Divert Pentagon Funds to Build Wall

June 26, 2020 by Dan McCue

WASHINGTON – President Donald Trump does not have the authority to unilaterally divert Pentagon funds to build a miles-long wall on the U.S. border with Mexico, a federal appeals court ruled Friday afternoon.

In a 2-1 ruling, the 9th U.S. Circuit Court of Appeals said the transfer of $2.5 billion from the Defense Department circumvented Congress’ constitutional power to appropriate money.

The court also rejected a claim from the government that both the Sierra Club and the Southern Border Communities Coalition lacked the standing to pursue the lawsuit.

Writing for the majority, Chief U.S. Circuit Judge Sidney Thomas said succinctly that “the Executive Branch lacked independent constitutional authority to authorize the transfer of funds.

“The panel noted that the Appropriations Clause of the U.S. Constitution exclusively grants the power of the purse to Congress. The panel held that the transfer of funds violated the Appropriations Clause, and, therefore, was unlawful,” Thomas wrote.

“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.’ Therefore, the transfer of funds here was unlawful,” he said.

He was joined in the ruling by U.S. Circuit Judge Kim McLane Wardlaw.

U.S. Circuit Judge Daniel Collins, a Trump appointee to the bench, dissented from his colleagues, writing that while he agreed that the Sierra Club had established standing, in his view the organizations lacked any cause of action to challenge the transfers, and concluded that the transfers were lawful. 

“This ruling is a win for the rule of law, the environment, and border communities,” said Dror Ladin, staff attorney with the ACLU’s National Security Project, and one of the lawyers who argued the case in front of the 9th Circuit. 

“President Trump’s xenophobic wall is already leveling protected lands, desecrating cultural sites, and destroying wildlife. 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.

Trump sought to transfer the money to the border wall project through a national emergency declaration he signed last year. Trump extended that declaration in February.

The president made construction of the border wall a key part of his 2016 campaign for the White House. At the time he claimed he was going to build the wall to keep out illegal immigrants and drugs “and Mexico is going to pay for it.”

Since assuming office, however, his administration has been beset by legal and political challenges related to the project. Still, the president has remained unbowed.

Just last week, Trump made a trip to the border to celebrate the completion of 200 miles of the new wall.

“My administration has done more than any administration in history to secure our southern border. Our border has never been more secure,” he told officials.

He also vowed to build an additional 450 miles by the end of the year.

Last year, the U.S. Supreme Court intervened in the case, voting 5-4 and along ideological lines, to allow Trump to continue to use the Defense Department funds while the administration appealed a ruling by U.S. District Judge Haywood Gilliam, Jr., in which the judge found the administration failed to prove the money was needed for “unforeseen military requirements.”

The 9th Circuit panel agreed, noting that the problems Trump was claiming to address with the funds were not unanticipated or unexpected.

Among those applauding the 9th Circuit decision Friday was House speaker Speaker Nancy Pelosi, who said, “on a bipartisan basis, Congress has repeatedly refused to fund the President’s ineffective, wasteful border wall.  

“The rulings by the Ninth Circuit are a great victory for the rule of law and our Constitution,” she continued. “These decisions uphold our Founders’ vision for our democracy: three co-equal branches of government with an Executive branch that is subject to the laws passed by Congress. 

“President Trump’s ongoing attempts to undermine military readiness by stealing critical defense funding to pay for his wall is reckless and endangers the American people,” Pelosi added. “The funds that he is pilfering, which were appropriated by Congress, are vital to support the safety and well-being of the brave men and women in uniform, as well as their families.  We will never allow our national security and the strength of our military families to suffer so that the President can fulfill an outrageous campaign promise.   

“Congress, not the President, has the power of the purse – a power that the Circuit Court’s decisions strongly uphold,” the Speaker said.

Also weighing in was California Attorney General Xavier Becerra, whose state is the site of a portion of the wall.

“Today, the court reminded the president — once again — that no one is above the law,” Becerra said. “

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