Federal Judge Rules Trump Cannot Use Certain Department of Defense Funds to Build Border Wall

Department of Defense Funds Cannot Used to Build Border Wall
Written by: Taher Kameli, Esq.

One of the common occurrences concerning President Trump’s immigration plan has been a declaration by a Federal judge that a specific immigration policy of President Trump is unlawful.  One of the key components of President Trump’s immigration plan is his intent to construct a wall on the United States-Mexico border. However, again, on May 24, a Federal judge declared that a specific immigration policy of President Trump is unlawful – this time blocking the use of certain Department of Defense funds to build the United States-Mexico border wall.

The case (Sierra Club v. Trump, Case No. 19-cv-00892-HSG (N.D. Cal. 2019)) arose from President Trump’s decision earlier this year to declare a “national emergency” at the United States-Mexico border and divert Department of Defense funds intended for other purposes to instead be used to construct the border wall.  In response, the American Civil Liberties Union filed litigation on behalf of the Sierra Club and the Southern Border Communities Coalition, including asking for an injunction to prevent such diversion of Department of Defense funds to build the border wall.

U.S. District Court Judge Haygood Gilliam, Jr. ruled, “It is important at the outset for the Court to make clear what this case is, and is not, about.  The case is not about whether the challenged border barrier construction plan is wise or unwise. It is not about whether the plan is the right or wrong policy response to existing conditions at the southern border of the United States. . . . Instead, this case presents strictly legal questions regarding whether the proposed plan for funding border barrier construction exceeds the Executive Branch’s lawful authority under the Constitution and a number of statutes duly enacted by Congress. . . . [T]he Court finds Plaintiffs are entitled to a preliminary injunction as to Defendants’ use of Section 8005’s reprogramming authority to channel funds into the drug interdiction fund so that those funds may be ultimately used for border barrier construction in El Paso Sector Project 1 and Yuma Sector Project 1. . . . The Court agrees with Plaintiffs that reading Section 8005 to permit this massive redirection of funds under these circumstances likely would amount to an ‘unbounded authorization for Defendants to rewrite the federal budget,’ . . . and finds that Defendants’ reading likely would violate the Constitution’s separation of powers principles. . . .

Finally, the Court has serious concerns with Defendants’ theory of appropriations law, which presumes that the Executive Branch can exercise spending authority unless Congress explicitly restricts such authority by statute. . . . But it is not Congress’s burden to prohibit the Executive from spending the Nation’s funds: it is the Executive’s burden to show that its desired use of those funds was ‘affirmatively approved by Congress.’ . . . To have this any other way would deprive Congress of its absolute control over the power of the purse . . . 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.  It is a feature of that system, and an essential one. . . .

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. . . . Because the Court has found that Plaintiffs are likely to show that Defendants’ actions exceeded their statutory authority, and that irreparable harm will result from those actions, a preliminary injunction must issue pending a resolution of the merits of the case”.

Judge Gilliam, Jr.’s decision (affecting $1 billion of Defense Department funding) prevented work from beginning on 2 specific border wall construction projects – one covering 46 miles in New Mexico and another covering 5 miles in Yuma, Arizona.  President Trump indicated after the ruling that he would asking for an expedited appeal.

Judge Gilliam, Jr. would not rule on a preliminary injunction regarding the use of other funds (an additional $3.6 billion) from military construction projects that have yet to be identified by the Defense Department for the border wall.

The Sierra Club decision again evidences the power of the Federal courts to prevent implementation of unlawful policies that are part of President Trump’s immigration plan.  For the Federal courts to so act, they need to hear cases brought by skilled litigation attorneys who are representing the interests of immigrants. TheKameli Law has years of experience successfully representing immigrants in litigation in Federal courts.  If you need immigration litigation representation, please contact theKameli Law, at taher@kameli.com or 312-233-1000, to pursue your case in Federal court.

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