9th Circuit Denies Request to Unblock $2.5 Billion for Border Wall Construction

A section of border wall is constructed on the U.S. side of the border in Tijuana, Mexico, on Jan. 28, 2019. Scott Olson/Getty Images

The 9th Circuit Court of Appeals in San Francisco denied the request of the Trump administration to unblock the use of $2.5 billion of Defense Department funds for border wall construction. The request came after the money reallocation was blocked by a lower court while the underlying lawsuit proceeds.

The three-judge panel ruled 2–1 on July 3 that the reallocation should remain blocked because, among other things, the plaintiffs had a good chance of proving the administration overstepped its constitutional authority.

“Defendants’ attempt to reprogram and spend these funds ... violates the Appropriations Clause and intrudes on Congress’s exclusive power of the purse,” wrote Judges Richard Clifton, a George W. Bush appointee, and Michelle Friedland, a Barack Obama appointee.

Judge Randy Smith, also appointed by Bush, dissented, saying “the majority has created a constitutional issue where none previously existed” and that the plaintiffs “lack a cause of action” to challenge the reallocation (pdf).

The Suit

On Feb. 15, President Donald Trump declared a national emergency at the southern border and announced that around $6.7 billion would be reprogrammed from other parts of the budget for border wall construction.

On Feb. 19, two nonprofits, the Sierra Club and Southern Border Communities Coalition, filed a lawsuit alleging that the administration overstepped its constitutional and statutory authority in reprogramming the funds.

The nonprofits alleged that the wall and its construction “would detract from their ability to hike, fish, enjoy the desert landscapes, and observe and study a diverse range of wildlife in areas near the U.S.-Mexico border.”

On May 24, a federal district court in Oakland, California, blocked the administration from building parts of the wall in the Border Patrol sectors of El Paso, Yuma, El Centro, and Tucson, concluding that the plaintiffs were likely to prove that the administration overstepped its authority to move money around under the 2019 Department of Defense Appropriations Act.

What Does the Law Say?

Section 8005 of the act allows the Defense Department to reprogram some money “for higher priority items, based on unforeseen military requirements, than those for which originally appropriated” except in cases “where the item for which funds are requested has been denied by the Congress.”

The Pentagon argued that it received a request from the Homeland Security Department to help out with counter-drug trafficking activities along the border, including barrier construction, which it couldn’t foresee when it was requesting money from Congress for 2019. And because the Pentagon didn’t request the money for this purpose, Congress didn’t deny it.

Clifton and Friedland weren’t convinced, saying the statute should be interpreted more broadly. Because Trump wanted $5.7 billion for the wall construction and Congress only gave him about $1.4 billion, that should be interpreted as a “denial.”

Smith, on the other hand, dismissed such reasoning as irrelevant.

Overstepping the Section 8005 authority, he said, should be challenged under the Administrative Procedure Act, where the plaintiffs would have to show that they have been economically injured by the transfer of the funds.

Instead, “they assert aesthetic, recreational, and generalized environmental interests that will be affected, not by the transfer of funds, but by the building of the border wall,” he said.

“Nothing in § 8005 requires that aesthetic, recreational, or environmental interests be considered before a transfer is made, nor does the statute even address such interests.”

His colleagues have tried to reinterpret the challenge “as a constitutional claim against the [Defense Department] for violating the Appropriations Clause,” which, he said, “contradicts several lines of case law.”

The Appropriations Clause gives Congress the power of the purse. But in this case, Congress passed a statute that gives the administration discretion to reprogram certain funds. The plaintiffs only claim that the Defense Department used the statute incorrectly and “no constitutional question” is raised, Smith said, citing from a Supreme Court case that has previously addressed the issue.

The Supreme Court actually made clear when a statutory violation can be expanded into a constitutional issue, Smith said, and that’s when the statute itself is questioned as unconstitutional.

“But Plaintiffs have not alleged that § 8005 is itself unconstitutional,” Smith said.

Trump’s Wall

Trump has emphasized the necessity of the border wall to help solve issues of illegal immigration, human trafficking, including of children, and drug smuggling into the United States, which kills tens of thousands of Americans a year.

The situation at the border has deteriorated as the apprehensions of illegal crossers skyrocketed by some 135 percent in the first 8 months of fiscal 2019, compared with the same period a year before.

For months after Trump declared the emergency, Democrats stuck to denying the crisis at the border. On June 27, however, House Speaker Nancy Pelosi (D-Calif.) backed down and agreed to let the House vote on a Senate bill without amendments that approved $4.6 billion of humanitarian aid to the border.

The bill doesn’t address construction of the wall.