Gilliam wrote that the government’s position “that when Congress declines the Executive’s request to appropriate funds, the Executive 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.”
The law the administration invoked to shift funds allows transfers for “unforeseen” events. Gilliam said the government’s claim that wall construction was “unforeseen” “cannot logically be squared” with Trump’s many demands for funding dating back to early 2018 and even in the campaign.
With some contracts already awarded for construction, Gilliam said that allowing work to go forward before the legal issues have been fully resolved could cause irreparable harm.
He ruled in response to lawsuits brought by the Sierra Club and the Southern Border Communities Coalition.
The plaintiffs sought preliminary injunctions against the administration’s diversion of billions of dollars meant for other purposes. The plaintiffs alleged that Trump’s actions violate the constitutional requirement that no money may be spent without an appropriation from Congress as well as legal restrictions on the purposes for which funds can be reallocated.
The suits asked Gilliam to block any wall-related activity paid for with those funds while he fully considers the merits of the suits.
About $1 billion has been moved from military pay and pension accounts, transfers that Gilliam ruled against Friday, but no money has been transferred from the emergency military construction fund for which the president declared a state of emergency in February. That fund represents about $3.6 billion of the money President Trump wants to use.
Gilliam said he would rule on that issue separately when the administration actually shifts money using that authority. He doubted the administration would prevail on that, either, questioning whether a border fence met the definition of “military construction,” an interpretation that would give the government “unbounded authority” not authorized by law, he said.
The Justice Department did not respond to requests for comment late Friday.
A lawyer for the American Civil Liberties Union, Dror Ladin, who argued the plaintiffs’ case, called the order “a win for our system of checks and balances, the rule of law and border communities.”
Friday’s order applies to wall segments around Yuma and El Paso. Sanjay Narayan, Sierra Club managing attorney, said additional segments announced too late for Friday’s decision will be taken up in early June.
The ruling is the latest chapter in Trump’s quest for a “big, beautiful wall” on the southern border to keep out undocumented migrants. Construction of the wall at Mexico’s expense was a central promise of Trump’s presidential campaign. Mexico refused, and the president was rebuffed by the Democratic-controlled House, which after a 35-day partial shutdown of the government, appropriated only $1.375 billion, for non-wall border security, of the more than $4 billion the president had requested for wall construction.
Trump vowed that if he did not “get a fair deal” from Congress, he would shift money from other government accounts to close the gap. He declared a state of emergency on the southern border on Feb. 15 to tap into one Pentagon fund meant for emergency military construction. So far, the government says that fund has not been touched, allowing the government to argue that it should not be an issue in the cases.
He authorized additional diversions from the Defense and Treasury departments of funds never intended for wall-building.
Gilliam did not issue an injunction in an associated case brought by two dozen states led by California saying they had not shown the irreparable harm required for such an order. The cases are Sierra Club et al v. Donald J. Trump et al and California et al v. Trump et al.