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Trump’s use of military funds for border wall construction is illegal, 9th Circuit Court rules

President Trump’s border wall cuts through mountains and grasslands near Hereford, Ariz. (Carolyn Van Houten/The Washington Post)

President Trump’s transfer last year of $2.5 billion in military funds to pay for border wall construction was an illegal overreach of executive authority, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit ruled Friday.

The 2-to-1 ruling was a setback to the president’s increasing reliance on the Pentagon to finance hundreds of miles of new barrier along the Mexico border. Its long-term implications were less certain, as the Supreme Court ruled in Trump’s favor in a similar case last year and Friday’s decision affects only a portion of the funds the White House has budgeted for what has become one of the largest federal infrastructure projects in U.S. history.

The president, who ran for office in 2016 promising that Mexico would pay for the border wall, has obtained more than $15 billion in U.S. federal funds for his signature project, including $5 billion provided by Congress through conventional appropriations. The president has tapped into Pentagon accounts for the remaining $10 billion, including the $2.5 billion transfer last year that the 9th Circuit said Friday was unlawful.

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Some of those funds already have been awarded as contracts to the private builders hired to construct the barrier. In its ruling, the court said the White House “lacked independent constitutional authority to authorize the transfer of funds” from the military.

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

In response to a request for comment, the Department of Homeland Security sent a one-sentence statement from spokesman Alexei Woltornist. “We are sorely disappointed in this decision,” he said, without responding to questions about potential effects on construction currently underway.

The Trump administration is expected to appeal Friday’s ruling to the Supreme Court, which last year sided with the White House and lifted a 9th Circuit injunction freezing transfers of funds from military accounts. The Sierra Club and a collection of border activists sued the administration again last year when Defense Secretary Mark T. Esper tapped new funding streams for a fresh $2.5 billion.

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Private contractors have completed about 220 miles of new fencing along the Mexico border, and DHS officials say they remain on track to deliver on Trump’s pledge to finish 450 miles by the end of 2020.

Construction has proceeded most swiftly on land already under government control, including wildlife preserves, national forests and other protected areas, outraging environmental groups, tribal authorities and others who view the 30-foot-tall steel structure as wasteful and destructive.

Gloria Smith, a Sierra Club attorney, called the ruling Friday “monumental” and said the court had “put a stop to Trump’s unconstitutional wall construction.”

“We should be protecting communities, our democracy, and the environment, not tearing these things apart as Trump hoped to do,” Smith said in a statement.

California Attorney General Xavier Becerra (D), who has filed multiple challenges to the administration’s construction plans, also hailed the decision in a statement Friday. “While the Trump administration steals public funds to build an unauthorized wall at the southern border, families across the country are struggling to pay their bills,” he said. “They deserve to know that their hard-earned dollars are going where Congress intended — to benefit them and their communities.”

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The Supreme Court last year lifted the lower-court injunction without ruling on the legality of the administration’s Pentagon transfers. But the administration has insisted the White House has the legal authority to pay for physical barriers as part of a wider effort to protect and defend the country’s borders. The Trump administration also has argued in recent months that security at the southern border is a crucial element of preventing further influx of the coronavirus, though the outbreak within the United States is by far the worst in the world.

The high court’s conservative majority ruled that the government had “made a sufficient showing at this stage” that private entities could not challenge the transfer of money by the executive branch.

But the 9th Circuit panel in San Francisco said “it is for the courts to enforce Congress’s priorities” and found that the Sierra Club “may invoke separation-of-
powers constraints, like the Appropriations Clause, to challenge agency spending in excess of its delegated authority.”

The showdown between Trump and Democratic lawmakers over border wall funding led to a 35-day government shutdown, the longest in U.S. history. It ended in January 2019 when the president dropped his funding demand for $5 billion, reaching into military accounts instead.

A three-judge panel in the U.S. Court of Appeals for the 5th Circuit also ruled this year in favor of the administration, lifting a ­lower-court injunction blocking the use of military funds for barrier construction in the El Paso area.

Robert Barnes contributed to this report.